Delaware Register
of
Regulations
Issue Date: July 1, 2003
Volume 7 Issue 1 - Pages 1 - 111
IN THIS ISSUE:
Regulations:
Errata
Proposed
Final
Governor
Appointments
General Notices
Calendar of Events &
Hearing Notices

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 June 15, 2003.
INFORMATION ABOUT THE DELAWARE
2 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amended or repealed and any emergency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:
6 DE Reg. 1541-1542 (06/01/03)
Refers to Volume 6, pages 1541-1542 of the
Delaware Register issued on June 1, 2003.
SUBSCRIPTION INFORMATION
The cost of a yearly subscription (12 issues)
for the Delaware Register of Regulations is
$135.00. 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or repealed, and may initiate the process by which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repealed, with the Registrar for publication in the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. 7, ISSUE 1, TUESDAY, JULY 1, 2003
INFORMATION ABOUT THE DELAWARE 3
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
AUGUST 1 JULY 15 4:30 P.M.
SEPTEMBER 1 AUGUST 15 4:30 P.M.
OCTOBER 1 SEPTEMBER 15 4:30 P.M.
NOVEMBER 1 OCTOBER 15 4:30 P.M.
DECEMBER 1 NOVEMBER 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; Ruth Ann Melson,
Legislative Librarian; Deborah J. Messina, Print
Shop Supervisor; Kathleen Morris, Operations
Support Specialist; Alex W. Mull, Assistant
Registrar; Deborah A. Porter, Interim
Supervisor; Lisa Schieffert, Research Analyst;
Victoria Schultes, Administrative Assistant; Ted
Segletes, Paralegal; Don Sellers, Printer; Alice
W. Stark, Legislative Attorney; Marvin L.
Stayton, Printer; Rochelle Yerkes, Senior
Secretary.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
,
4 TABLE OF CONTENTS
ERRATA
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR AND WASTE MANAGEMENT
Reg. No. 38, Emission Standards for Hazardous
Air Pollutants for Source Categories,
Subpart B........................................................ ....... 6
PROPOSED
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
100 Board of Accountancy............................................ ......7
DEPARTMENT OF EDUCATION
215 Strategic Planning......................................... ....... 10
610 Comprehensive School Discipline Program. ....... 10
878 Guidelines for the School Districts to Comply
with the Gun Free Schools Act...................... ....... 12
PROFESSIONAL STANDARDS BOARD
1504 Delaware Performance Appraisal System
for Administrators.......................................... ....... 13
DEPARTMENT OF HEALTH & SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
TItle XIX Medicaid State Plan, Attachment 4.18,
Client Cost Sharing for Pharmaceutical
Services ......................................................... ....... 23
Title XIX Medicaid State Plan, Attachment 4.19-C,
Standards for Payment of Reserved Beds During
Absence from Long-Term Care Facilities..... ....... 28
DSSM
9007.1, Citizenship & Alien Status................ ....... 29
9038, Verification Subsequent to Initial
Certification............................................ ....... 30
9063.3, Income Averaging............................. ....... 30
9085, Reporting Changes............................... ....... 30
15120.2, Financial Eligibility......................... ....... 32
15200, Transitional Medicaid/Initial Eligibility ... 32
HUMAN RELATIONS COMMISSION
Rule 10, Voluntary Termination and Dismissal &
Rule 27, Reconsideration............................... ....... 34
FINAL
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
Board of Chiropractic............................................ ...... 36
Board of Massage and Bodywork......................... ...... 40
DEPARTMENT OF AGRICULTURE
HARNESS RACING COMMISSION
Rule 7.0, Rules of the Race, Sections 7.6.6.3
and 7.3.9......................................................... ...... 42
DEPARTMENT OF EDUCATION
101 Delaware Student Testing Program................ ...... 51
103 School Accountability for Academic
Performance.................................................... ...... 57
104 Education Profiles for the Schools, Districts
and the State.................................................... ...... 65
608 Unsafe School Choice Option for Students
in Persistently Dangerous Schools and for
Students Who Have been Victims of a
Violent Felony................................................ ...... 67
811 School Health Record Keeping Requirements,
815 Physical Examinations and Screening and
817 Administration of Medications and
Treatments...................................................... ...... 68
PROFESSIONAL STANDARDS BOARD
1593 Delaware Professional Teaching Standards.. ...... 75
DEPARTMENT OF HEALTH & SOCIAL SERVICES
DIVISION OF LONG TERM CARE RESIDENTS PROTECTION
Adult Abuse Registry, Regulations Governing..... ...... 82
DIVISION OF PUBLIC HEALTH
Pre-Hospital Advanced Care Directive
Regulations..................................................... ...... 85
Public Drinking Water Systems, Regulations
Governing....................................................... ...... 94
DIVISION OF SOCIAL SERVICES
Fair Hearing Practices & Procedures, DSSM
5100 Legal Base, 5304 Jurisdiction, 5312
Responses to Hearing Requests, 5402 Hearings
on Decisions, 5403 Availability of Documents
and Records, 5405 Fair Hearing Procedures.. ...... 96
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
TABLE OF CONTENTS 5
DEPARTMENT OF INSURANCE
Reg. 1310, Standards for Prompt, Fair and
Equitable Settlement of Claims for Health
Care Services.................................................. ....... 100
GOVERNOR
Executive Order No. 44, Creating Principles for
Responsible Industry in Delaware................. ....... 103
Executive Order No. 45, Amendment to Executive
Order 20 Regarding the StateEmployees'
Charitable Campaign...................................... ....... 104
Appointments........................................................ ....... 105
CALENDAR OF EVENTS/HEARING
Board of Accountancy, Notice of Public Hearing. ....... 109
State Board of Education, Notice of Monthly
Meeting ......................................................... ....... 109
Dept. of Health & Social Services, Div. of Social Services
Title XIX Medicaid State Plan, Attachment 4.18,
Notice of Public Comment Period.......... ....... 109
Title XIX Medicaid State Plan, Attachment 4.19-C
Notice of Public Comment Period.......... ....... 109
DSSM, Sections 9007.1, Citizenship & Alien
Status, 9063.3, Income Averaging,
9085, Reporting Changes, 9085.2, DSS
Responsibilities: Action on Changes,
Notice of Public Comment Period.......... ....... 110
15120.2, Financial Eligibility, 15200,
Transitional Medicaid/Initial Eligibility,
Notice of Public Comment Period.......... ....... 110
Human Relations Commission, Notice of Public
Hearing.......................................................... ....... 110
Merit Employee Relations Board, Notice of Public
Hearing.......................................................... ....... 111
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
6 ERRATA
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR AND WASTE MANAGEMENT
AIR QUALITY SECTION
Statutory Authority: 7 Delaware Code, Chapter 60
(7 Del.C. Ch. 60)
Final Proposed Amendment to Subpart B
under SAN 2003-01
REGULATION NO. 38
EMISSION STANDARDS FOR HAZARDOUS
AIR POLLUTANTS FOR SOURCE CATEGORIES
(f) Permit issuance and content.
(1) For each Part 2 application received
according to paragraph (a) of this section, the Department
shall reopen the source's Regulation 30 permit for cause
according to the requirements of Regulation 30 and shall
impose the requirements in paragraph (f)(3) of this section,
as appropriate, through the Regulation 30 permit. If the
Department has not yet issued a Regulation 30 permit, the
Department shall revise the applicable Regulation 2
operating permit(s) using the procedures in paragraphs 12.4
through 12.6 of Regulation 2.
(2) For each Part 2 application received
according to paragraph (b) or (c) of this section, the
Department shall issue a Regulation 2 construction or
operating permit using the procedures of paragraph 11.2(j) of
Regulation 2, shall reopen the source's Regulation 30 permit
for cause, shall revise the source's Regulation 30 permit as a
significant permit revision or shall issue a Regulation 30
permit, as applicable, to impose the requirements in
paragraph (f)(3) of this section, as appropriate.
(3) Permit requirements for affected
112(j) sources.
(i) Identification of the affected
112(j) source and the new affected 112(j) source.
(ii) An equivalent emission
limitation established by the Department that reflects
existing source MACT requirements, for the equipment and
activities within the affected 112(j) source, based on the
degree of emission reductions that can be achieved if the
control technologies or work practices are installed,
maintained and operated properly.
(iii) An equivalent emission
limitation established by the Department that reflects new
source MACT requirements for the equipment and activities
within the affected 112(j) source, based on the degree of
emission reductions that can be achieved if the control
technologies or work practices are installed, maintained and
operated properly.
* PLEASE NOTE: IN THE FOLLOWING PARAGRAPH THE
NUMBER 3 WAS OMMITED, AS IS NOTED BY THE BRACKED
BOLD NUMBERS IN PARAGRAPH (IV).
AS THE REST OF THE FINAL REGULATION WAS NOT
AFFECTED IT IS NOT BEING REPRODUCED HERE.
(iv) In lieu of paragraphs (f)[3](ii)
and (f)[3](iii) of this section, any specific design, equipment,
work practice or operational standard or combination
thereof, when the Administrator or Department determines
that hazardous air pollutants cannot be emitted through a
conveyance designed and constructed to capture such
pollutants, or that any requirement for, or use of, such a
conveyance would be inconsistent with any Federal, State or
local law, or the application of measurement methodology to
a particular class of sources is not practicable due to
technological and economic limitations.
(v) The appropriate provisions of
subpart A of this regulation and the information specified in
paragraphs (f)(3)(v)(A) through (C) of this section.
(A) Any additional emission
limits, production limits, operational limits or other terms
and conditions necessary to ensure practicable enforceability
of the MACT emission limitation.
(B) Compliance certifications,
testing, monitoring, reporting and record keeping
requirements that are consistent with requirements
established according to Regulation 30.
(C) Compliance dates by which
the owner or operator shall be in compliance with the MACT
emission limitation and all other applicable terms and
conditions of the permit.
(I) The owner or operator
of an major affected 112(j) source subject to paragraphs (a),
(b) or (c)(2) of this section shall comply with existing source
MACT requirements by the date established in the source's
Regulation 30 or Regulation 2 permit, as applicable. The
compliance date shall not be later than 3 years after the
issuance of the permit for that source, except where the
Department issues a permit that grants an additional year to
comply in accordance with section 112(i)(3)(B) of the Act or
unless otherwise specified in section 112(i).
(II) The owner or operator
of a new affected 112(j) source subject to paragraph (c)(1) of
this section shall comply with new source MACT
requirements immediately upon startup of the new affected
112(j) source.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 7
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 nat ure
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 ACCOUNTANCY
24 DE Admin. Code 100
Statutory Authority: 24 Delaware Code
Section 105 (1), (24 Del.C. §105 (1))
PUBLIC NOTICE
The Board issues these proposed rules pursuant to 24
Del.C. §105(1) and 29 Del.C. §10115. The Board will
accept written comments from July 1, 2003 through July 30,
2003. The Board will hold a public hearing on the proposed
amendments on July 23, 2003 at 8:30 a.m. in the second
floor conference room in the Division of Professional
Regulation, Cannon Building, 861 Silver Lake Boulevard,
Suite 203, Dover, DE 19904-2467. Written comments
should be submitted to Sheila Wolfe, Administrative
Specialist, Division of Professional Regulation, at the same
above-listed address.
The Board proposes to amend the Rule 5.2 to delete the
provision that currently permits a person to take the CPA
examination if the applicant expects to meet the Board's
education requirements within 120 days of taking the
examination. The Board proposes a new Rule 11.8,
Computer Based Examinations to provide the rules
governing the administration of the computer based
examination for the Uniform CPA examination including the
period within which an applicant may sit for the examination
and the provisions for conditional credit for persons
previously taking the paper-and-pencil examination.
Michael F. McTaggart
Deputy Attorney General
5.0 Examination and Certificate Requirements
5.1 Each applicant for a certificate must provide the
Board with the following:
5.1.1 A statement under oath or other
verification satisfactory to the Board that the applicant is of
good character as that term is defined in 24 Del.C.
§107(a)(1).
5.1.2 Evidence in a form satisfactory to the
Board that the applicant has successfully passed the Uniform
Certified Public Accountant Examination or its successor
examination.
5.1.3 Evidence in a form satisfactory to the
Board that the applicant has successfully completed the
AICPA self-study program "Professional Ethics for CPAs,"
or its successor course, with a grade of not less than 90%.
5.1.4 Evidence in a form satisfactory to the
Board that the applicant holds a Master's Degree, a
Baccalaureate Degree or an Associate Degree, with a
concentration in accounting.
5.1.4.1 The applicant also must, upon
request, submit proof that the college or university granting
the degree was, at the time of the applicant's graduation,
accredited by the Middle States Association of Colleges and
Secondary Schools or by another comparable regional
accrediting association. A degree granted by a college or
university not so accredited at the time of applicant's
graduation will not be accepted. Graduates of non-United
States (U.S.) degree programs will be required to have their
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
8 PROPOSED REGULATIONS
credentials evaluated by a credential evaluation service
acceptable to the Board, to determine equivalency to U.S.
regional accreditation.
5.1.4.2 The concentration in accounting must
be completed at an accredited college or university and
consist of at least 21 semester hours of accounting, auditing,
and federal taxation, either as part of applicant's Associate,
Baccalaureate or Master's Degree program or subsequent to
the completion of the program. Each applicant must have
completed courses in accounting (including introductory,
intermediate, advanced, and cost accounting), auditing, and
federal taxation as components of the 21 hour concentration
in accounting. Courses must have been completed in all
three areas (i.e. accounting, auditing, and federal taxation).
Courses in other business subjects, such as banking, business
law, computer science, economics, finance, insurance,
management and marketing will not be accepted as
accounting courses for this purpose.
5.1.4.3 Except for applicants applying under
Section 5.2 of these Rules and Regulations, the educational
qualification required by this subsection contemplates
satisfactory completion of all required courses of study by
the final date for accepting applications for the examination
at which the applicant intends to sit.
5.2 Applicants requesting to sit for the the Uniform
Certified Public Accountant Examination or its successor
examination must demonstrate that they meet the good
character and education requirements of Sections 5.1.1 and
5.1.4 of these Rules and Regulations. An applicant who
expects to meet the education requirements of Section 5.1.4
within 120 days following the examination is eligible to take
the examination provided he or she:
5.2.1 meets the character requirements of
Section 5.1.1; and
5.2.2 provides evidence satisfactory to the
Board that he or she is expected to complete the education
requirements within 120 days of the examination.
11.0 Additional Provisions Concerning Examinations
11.1 All examinations required under 24 Del.C. Ch.
1 and these Rules and Regulations shall be graded by the
applicable grading service of the organization offering the
examination.
11.2 Applications to sit for the May or November
Uniform Certified Public Accountant examination ("CPA
examination") shall be submitted in completed form to the
Board's designated agent by the dates determined by the
Board's designated agent.
11.3 The CPA examination shall be in the subjects
of accounting and reporting, financial accounting and
reporting, auditing, and business law, and in such other or
additional subjects that may be covered in successor
examinations as may be required to qualify for a certificate.
11.4 Rules for Examination.
11.4.1 Examinations shall be in writing.
11.4.2 Applicants are permitted to use pencil and
eraser. Calculators provided at the exam site are the only
mechanical devices allowed.
11.4.3 At any examination, an applicant must
prepare and submit to the Board papers on all required
subjects for which he or she does not have current credit for
certification or permit, whichever is applicable.
11.4.4 An applicant who commits an act of
dishonesty or otherwise engages in any other form of
misconduct, will be expelled from the examination room and
may be denied the right to sit for future examinations.
11.4.5 Applicants will be informed in writing of
the results achieved in each examination.
11.5 Passing Grade on the Uniform CPA
Examination
11.5.1 An applicant for a certificate who receives
a grade of 75 or higher in all four subjects at one
examination shall be deemed to have passed the Uniform
Certified Public Accountant Examination.
11.5.2 An applicant who is taking only the
Accounting and Reporting (ARE) and Financial Accounting
and Reporting (FARE) sections of the CPA examination in
order to apply for a permit to practice public accounting,
who receives a grade of 75 or higher in both required
subjects, shall be deemed to have passed the applicable parts
of the CPA examination.
11.6 Conditional Status for Subjects passed in this
State
11.6.1 An applicant who sits for all required parts
of either examination and who receives a grade of 75 or
higher in one or more, but less than all subjects passed may
attain conditional status under the following circumstances:
11.6.1.1 To attain conditional status, the
applicant must obtain a grade of 75 or higher in two subjects
and obtain a grade of at least 50 in all subjects not passed.
This minimum grade requirement is waived if three subjects
are passed at a single examination.
11.6.1.2 To add to conditional status, the
applicant must obtain a grade of at least 50 in all subjects not
passed. Although a grade of less than 50 prevents the
applicant from adding to his or her conditional status, it
alone does not remove or cancel conditional status
previously attained.
11.6.1.3 To pass the examination via
conditional status, an applicant must pass the remaining
subjects within 5 consecutive examinations following the
attainment of conditional status. The conditional period may
be extended at the discretion of the Board, if an applicant is
unable to sit for a given examination because of health,
military service or other circumstances generally beyond the
applicant's control.
11.6.1.4 An applicant who fails to pass all
subjects required during the 5 consecutive examinations
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 9
following the attainment of conditional status, shall forfeit
all credits and shall, upon application as a new applicant, be
examined again in all subjects.
11.7 Transfer of Credit for Subjects Passed in
Another Jurisdiction
11.7.1 An applicant who has passed one or more
subjects of either examination in another jurisdiction will be
permitted to transfer to this jurisdiction credit for the parts so
passed under the following conditions, and provided the
requirements of Section 11.6 of these Rules and Regulations
have been met:
11.7.1.1 At the time he or she sat for the
examination in the other jurisdiction, he or she met all the
requirements of the statute and regulations to sit for the
examination in Delaware; and
11.7.1.2 At the time he or she makes
application to sit for the examination in Delaware, he or she
meets all the requirements of the Delaware statute and
regulations; and
11.7.1.3 Credit for any subject of the
examination which is transferred from some other
jurisdiction to Delaware will be treated as if that credit had
been earned in Delaware on the same date such credit was
earned in the other jurisdiction, and all time requirements of
Delaware conditional status will be applied to it.
11.7.2 The Board will require satisfactory
evidence from the transferring jurisdiction as to the validity
of the credit.
11.7.3 If an applicant has passed all subjects of
either examination in one or more other jurisdictions, but
does not possess a certificate or permit from one of the
jurisdictions in which a subject was passed, transfer of credit
will only be permitted if a satisfactory explanation of such
lack of a certificate or permit is furnished to the Board in
writing. The Board may require a written explanation of
why no certificate or permit was issued from the jurisdiction
in which the final subject was successfully completed.
11.8 Computer-Based Examination
11.8.1 Effective with the implementation of the
computer-based examination, a candidate may take the
required test sections individually and in any order. Except
as provided in sections 11.8.2 and 11.8.3 of these rules,
credit for any test section(s) passed shall be valid for
eighteen months from the actual date the candidate took the
test section, without having to attain a minimum score on
any failed test section(s) and without regard to whether the
candidate has taken other test sections. The candidate shall
also be subject to the following:
11.8.1.1 Candidates must pass all four test
sections of the Uniform CPA Examination within a rolling
eighteen-month period, that begins on the date that the first
test section is passed.
11.8.1.2 Candidates cannot retake a failed test
section(s) in the same examination window. An
examination window refers to a three-month period in which
candidates have an opportunity to take the examination
(comprised of two months in which the examination is
available to be taken and one month in which the
examination will not be offered while routine maintenance is
performed and the item bank is refreshed). Thus, candidates
will be able to test two out of three months within an
examination window.
11.8.1.3 In the event all four test sections of
the examination are not passed within the rolling eighteen
month period, credit for any test section(s) passed outside
the eighteen-month period will expire and that test section(s)
must be retaken.
11.8.2 Effective with the implementation of the
computer-based examination, candidates having earned
conditional credits on the paper-and-pencil examination will
retain conditional credits for the corresponding test sections
of the computer-based examination as follows:
Paper-and-Pencil Examination Computer-Based Examination
Auditing Auditing and Attestation
Financial Accounting and Financial Accounting and
Reporting (FARE) Reporting (FARE)
Accounting and Reporting (ARE) Regulation
Business Law and Professional Business Environment and
Responsibilities (LPR) Concepts
Such candidates will be allowed until October 31, 2005,
or eighteen months from the administration of the last paperand-
pencil examination, whichever is longer, to complete
any of the remaining test sections of the examination before
the credits earned under the paper-and-pencil examination
expire and the candidate loses credit.
11.8.3 The Board may extend the term of
conditional credit validity in cases of substantial hardship as
determined by the Board in its discretion.
11.8.4 A candidate shall be deemed to have
passed the examination once the candidate holds, at the same
time, valid credit for passing each of the four test sections of
the examination. For purposes of this Regulation, credit for
passing a test section of the computer-based examination is
valid from the actual date of the testing event for that test
section, regardless of the date the candidate actually received
notice of the passing grade.
* PLEASE NOTE: AS THE REST OF THE SECTIONS WERE
NOT AMENDED THEY ARE NOT BEING PUBLISHED. A
COMPLETE SET OF THE BOARD OF ACCOUNTANCY
REGULATIONS ARE AVAILABLE AT:
http://www.state.de.us/research/profreg/Frame.htm
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
10 PROPOSED REGULATIONS
DEPARTMENT OF EDUCATION
14 DE Admin. Code 103
Statutory Authority: 14 Delaware Code,
Section 122 (14 Del.C. §122)
PUBLIC NOTICE
The Secretary of Education intends to repeal regulation
215 Strategic Planning. The regulation directs the local
school districts to maintain a strategic planning process. The
local school districts have the authority to administer and
supervise their schools under the Delaware Code in Chapter
10 which includes establishing policies on strategic
planning. In addition, the districts are required by numerous
state and federal laws to produce planning documents. The
Department of Education does not need to regulate the
planning processes of the local school districts.
215 Strategic Planning
1.0 Each school district shall maintain a multi-year strategic
planning process to serve as the foundation for all other
required plans and grant applications and for the purpose of
assuring and monitoring continuous program improvement
and student achievement.
See 2 DE Reg. 961 (12/1/98)
Education Impact Analysis Pursuant To
14 DEL. C. Section 122(d)
610 Treatment of Severe Discipline Problems
Component
A. TYPE OF REGULATORY ACTION REQUIRED
Re-authorization of Existing Regulation
B. SYNOPSIS OF SUBJECT MATTER OF THE
REGULATION
The Secretary of Education intends to re-adopt
regulation 610 Treatment of Severe Discipline Problems
Component (14 Del. C. Section 1604 of Chapter 16
Comprehensive School Discipline Improvement Program
August 1998). The regulation is due for action as per the
regulation review cycle and although adjustments need to be
made to the regulation the regulation is being recommended
for re-adoption until the needed research is completed and
the adjustments can be made.
C. IMPACT CRITERIA
1. Will the re-adopted regulation help improve student
achievement as measured against state achievement
standards? The re-adopted regulation will continue to define
the circumstances for alternative placement options for
students in danger of expulsion from the regular school
program.
2. Will the re-adopted regulation help ensure that all
students receive an equitable education? The re-adopted
regulation ensures that all students receive the same
information concerning alternative placements.
3. Will the re-adopted regulation help to ensure that
all students' health and safety are adequately protected? The
re-adopted regulation addresses alternative placements not
health and safety specifically.
4. Will the re-adopted regulation help to ensure that
all students' legal rights are respected? The re-adopted
regulation assists in clarifying the legal rights of students
who are in danger of being expelled.
5. Will the re-adopted regulation preserve the
necessary authority and flexibility of decision making at the
local board and school level? The re-adopted regulation will
preserve the necessary authority and flexibility of decision
making at the local board and school level.
6. Will the re-adopted regulation place unnecessary
reporting or administrative requirements or mandates upon
decision makers at the local board and school levels? The
re-adopted regulation will not place any unnecessary
reporting or administrative requirements or mandates upon
decision makers at the local board and school levels.
7. Will the decision making authority and
accountability for addressing the subject to be regulated be
placed in the same entity? The decision making authority
will remain in the same entity.
8. Will the re-adopted regulation be consistent with
and not an impediment to the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies? The re-adopted regulation will be consistent with
and not an impediment to the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies.
9. Is there a less burdensome method for addressing
the purpose of the re-adopted regulation? There is no less
burdensome method.
10. What is the cost to the State and to the local school
boards of compliance with the re-adopted regulation? The
cost to the state and local school boards will remain the
same.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 11
610 Treatment of Severe Discipline Problems
Component
1.0 Population to be Served: Except as otherwise provided
herein, all students who are expelled by a local school
district or are in danger of being expelled shall be placed in
the alternative program unless the student is expelled for an
offense equivalent to a violation of one of the following: 11
Del.C. §613 (Assault in the First Degree); or 11 Del.C.
§1457 (Possession of a Weapon in a Safe School and
Recreation Zone); or 11 Del.C. §802 (Arson in the Second
Degree); or 11 Del.C. §803 (Arson in the First Degree); or
11 Del.C. §771 (Unlawful Sexual Penetration in the Second
Degree); or 11 Del.C. §772 (Unlawful Sexual Penetration in
the First Degree); or 11 Del.C. §773 (Unlawful Sexual
Intercourse in the Third Degree); or 11 Del.C. §774
(Unlawful Sexual Intercourse in the Second Degree); or 11
Del.C. §775 (Unlawful Sexual Intercourse in the First
Degree); or 16 Del.C. §4753A (Trafficking Marijuana,
Cocaine, Illegal Drugs or Methamphetamine).
2.0 Non-referral of Students: In any case in which an
expelled student is not referred to an alternative program, the
decision of the local school district to expel shall state with
specificity the reason for non-referral and the evidence in
support thereof.
3.0 Informing the Legal Guardian: Districts shall inform
the legal guardian of students for whom expulsion is being
considered or who are expelled of the alternative education
options that are then currently available to the students.
These options shall include but not be limited to the
alternative program, GED programs, James H. Groves High
School and others.
4.0 Age/Grade Level to be Served: Eligible students shall
be primarily those who are enrolled in grades 6 through 12,
however students in lower grades may also be served
through these funds.
5.0 Placement in Alternative Programs: Each district shall
establish an Alternative Placement Team to review each case
and prescribe the appropriate placement for each student.
The Placement Team, in concert with the Alternative
Program staff, shall design an Individual Service Plan (ISP)
for each student that will include educational goals,
behavioral goals, and services needed by both the student
and his/her family. The ISP shall include a tentative reentry/
transition plan. The Alternative Placement Team shall
be composed of a representative of the Alternative Program
staff; a district level coordinator who will be designated by
the superintendent; the building level principal, assistant
principal or other person as appropriate; student's custodial
adult; guidance counselor and/or school social worker;
representatives from DSCYF such as Youth Rehabilitation
Service or other worker with whom the family is involved as
appropriate. Other school, alternative program, or agency
personnel may be invited as needed and determined by the
Placement Team. Students who are being placed in the
Alternative Program as a transition from DSCYF facilities
will have an ISP developed in concert with the DSCYF
facility team, the Alternative Placement Team, and the
student's custodial adult. If students from either a school
district or DSCYF facility are students with disabilities,
appropriate special education staff shall be included in
placement considerations. The Alternative Placement Team
and the IEP Team may be the same.
6.0 September 30 Enrollment Count: A student enrolled in
an Alternative Program may be counted in the regular school
enrollment count. If enrolled the previous year in a special
education program in the reporting school, the student may
continue to be reported for the same level of special
education service as was received the previous year. If
enrolled the previous year in a vocational program in the
reporting school, the student may be reported as enrolled in
the next vocational course in the program series.
7.0 Alternative Program Setting: The Alternative Program
setting shall be apart from the regular school setting,
however, a part of a school building may be used for these
programs so long as the students do not interact with the
regular school population or use any school facility at the
same time as the regular school population. Use of other
agency facilities (Boys and Girls Club, YMCA, YWCA,
etc.) is encouraged. Settings shall meet safety regulations
for student occupancy as outlined in Delaware Code.
8.0 Alternative Program Design: The Alternative Program
shall include an educational program designed to maintain
and improve skills at least in core academic areas such as
English/language arts, mathematics, science, and social
studies that will allow students to re-enter the regular school
program with a reasonable chance and expectation for
success. Every effort shall be made to provide courses
comparable to the regular school setting for each student.
Opportunities for academic acceleration will also be
provided. The academic program should focus on applied
learning activities that encourage students' active
participation in the learning process as opposed to work
sheets and other "seat oriented" drill exercises. Credit for
work accomplished in the Alternative Program setting shall
be automatically transferred to the regular school. Included
in the academic core studies should be study skills, test
taking strategies, and academic confidence building.
Counseling and other services shall be delivered on-site for
students.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
12 PROPOSED REGULATIONS
9.0 Staffing: Instructional staff shall include at least two
certified teachers in the major academic subject areas who
can provide the lead for academic instruction and at least two
instructional/service aides. Priority should be given to hiring
staff who are qualified to teach special education.
10.0 Students With Disabilities: Notwithstanding any of
the provisions to the contrary, students with disabilities shall
be served pursuant to the provisions of Regulation 925,
Children with Disabilities.
See 2 DE Reg. 374 (9/1/98)
EDUCATION IMPACT ANALYSIS PURSUANT TO
14 Del.C. Section 122(d)
878 School District Compliance with the Gun Free
School Act
A. TYPE OF REGULATORY ACTION REQUIRED
Amendment to Existing Regulation
B. SYNOPSIS OF SUBJECT MATTER OF THE
REGULATION
The Secretary of Education intends to amend regulation
878 School District Compliance with the Gun Free School
Act. The title has been changed by removing the words
"School District" to reflect that charter schools must also
comply with this regulation. The number has been changed
to 603 placing the regulation in the Discipline section (600)
of the Regulations of the Department of Education rather
than in the Health and Safety section (800) since the focus of
the regulation is the penalties for gun possession.
The amended version of the regulation still requires
school districts to have a Gun Free Schools policy
implementing the Gun Free Schools Act (20 USC Section
4141) but the policy now also includes charter schools. The
amended regulation continues to contain reporting
requirements but the specific content of those requirements
has been updated to reflect the language of the No Child Left
Behind Act of 2001.
C. IMPACT CRITERIA
1. Will the amended regulation help improve student
achievement as measured against state achievement
standards? The amended regulation addresses safety issues
not academic achievement.
2. Will the amended regulation help ensure that all
students receive an equitable education? The amended
regulation addresses safety issues not equity.
3. Will the amended regulation help to ensure that all
students' health and safety are adequately protected? The
amended regulation addresses safety issues related to the
implementation of the Gun Free Schools Act.
4. Will the amended regulation help to ensure that all
students' legal rights are respected? The amended regulation
addresses students' legal rights as part of the implementation
of the Gun Free Schools Act.
5. Will the amended regulation preserve the necessary
authority and flexibility of decision making at the local
board and school level? The amended regulation reflects the
requirements of the Federal statute's reporting procedures.
6. Will the amended regulation preserve the necessary
authority and flexibility of decision making at the local
board and school level? The amended regulation preserves
the necessary authority and flexibility of decision making at
the local board and school level.
7. Will the decision making authority and
accountability for addressing the subject to be regulated be
placed in the same entity? The decision making authority
and accountability for addressing the subject to be regulated
will remain in the same entity.
8. Will the amended regulation be consistent with and
not an impediment to the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies? The amended regulation will be consistent with and
not an impediment to the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies.
9. Is there a less burdensome method for addressing
the purpose of the amended regulation? The Federal statute
requires that the regulation be adopted.
10. What is the cost to the State and to the local school
boards of compliance with the regulation? There may be
some addition cost to the local school boards due to
increased reporting requirements but the federal statute
requires the reporting.
878 School District Compliance With Gun
Free Schools Act
The Gun-Free Schools Act was enacted on March 31,
1994, as part of the Goals 2000: Educate America Act. The
Gun-Free Schools Act amends the current Elementary and
Secondary Education Act of 1965 (20 USC 2701 et seg)
ESEA.
1.0 Each school district requesting assistance under the
Elementary and Secondary Education Act shall, according to
the Federal Statute:
1.1 Have a written policy requiring the expulsion from
school of not less than one year of any student who brings a
weapon (see Section 921 of Title 18, US Code) to a school
under the jurisdiction of the district. Modification to the
expulsion requirement may be made on a case-by-case basis.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 13
1.2 Submit by June 1 (annually) to the Department of
Education an assurance that the required policy is in effect.
This requirement can be met by submitting a copy of the
District Code of Conduct with the requested policy included.
1.3 Submit to the Department of Education:
1.3.1 Description of the circumstances of each and
every expulsion imposed under the policy through the
reporting requirements for 16 Del.C. §4112, Reporting
School Crimes.
1.3.2 Annual report of all expulsions imposed
under this policy through the annual suspension and
expulsion reporting system.
2.0 Each school district requesting assistance under the
ESEA shall develop and submit to the Department of
Education (beginning in December, 1994), for review and
approval, a written policy which includes the following at a
minimum:
2.1 The use of the following definition in the district
policy: The term weapon as used in the Gun-Free Act means
a firearm as defined in Section 921 of Title 18, United States
Code.
2.2 Expulsion from school of not less than one year for
any student who brings a weapon (firearm) to a school under
the jurisdiction of the district.
2.3 An outline of the modification process that may be
used on a case-by-case basis.
2.4 A statement that the policy shall apply to all
students; except for students with disabilities, the federal law
will be followed and a determination will be made prior to
any discipline or change of placement in connection with the
policy as to whether or not the violation of the firearm policy
was due to the student's handicapping condition.
2.5 A system of notification of each student and his/her
parent/guardian/ custodial adult at the beginning of the
school year, and whenever a student enters or re-enters the
school during the school year of the policy.
See 1 DE Reg. 1976 (6/1/98)
603 Compliance with the Gun-Free Schools Act
1.0 Each school district and charter school requesting
assistance under the Elementary and Secondary Education
Act (ESEA) shall have a written policy implementing the
Gun Free Schools Act (20 USC §4141) and 11 Del.C.
§1457(j) or its successor statute. At a minimum, the policy
must contain the following elements:
1.1 A student who is determined to have brought a
firearm to school, or to have possessed a firearm at school,
shall be expelled for not less than one year.
1.2 Modification to the expulsion requirement may be
made on a case-by-case basis. Any modification to the
expulsion requirement must be made in writing.
1.3 The definition of "firearm" shall be the same as the
meaning given to the term in 18 USC §921(a).
2.0 Each school district and charter school requesting
assistance under the ESEA shall submit the following to the
Department by June 1 each year, in such form as the
Department requires:
2.1 An assurance that its policies comply with this
regulation and with 11 Del.C. §1457(j) or its successor
statute.
2.2 Descriptions of the expulsions imposed under 11
Del.C. §1457(j) or its successor statute and under the policy
implemented in accord with this regulation.
3.0 Nothing in this regulation shall alter a district or charter
school's duties pursuant to the Individuals with Disabilities
Education Act.
PROFESSIONAL STANDARDS BOARD
EDUCATIONAL IMPACT ANALYSIS PURSUANT
TO 14 DEL. C. SECTION 122 (d)
1504 Delaware Performance Appraisal System for
Administrators
A. TYPE OF REGULATORY ACTION REQUESTED
New Regulation
B. SYNOPSIS OF SUBJECT MATTER OF
REGULATION
The Professional Standards Board in cooperation and
collaboration with the Department of Education seeks the
approval of the State Board of Education to adopt the
following regulation:
1504 Delaware Performance Appraisal System for
Administrators
It is necessary to adopt this regulation in order to
comply with changes in statute regarding the evaluation of
the performance of educators. The Delaware Performance
Appraisal System (DPAS II) is a system for the evaluation of
educators. The system which has been developed is
research-based, and is aligned with the Delaware
Administrator Standards (ISSLC Standards). The system
serves the dual purposes of quality assurance and
professional growth, and contains a component dedicated to
student improvement. The Delaware Performance Appraisal
System reinforces those aspects of the system which apply to
all educators, while acknowledging the differences which
exist among groups of educators. It is necessary that the
existing Department regulation 115 School-Level
Administrator Appraisal Process remain in effect during the
pilot period of the DPAS II system, as educators in all
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
14 PROPOSED REGULATIONS
districts except those participating in a pilot of DPAS II will
continue to be evaluated under the existing regulations.
Comments received in response to an invitation for
public comment have been considered and changes have
been made in the proposed regulation. Included in the
changes are the restructuring of the challenge process
limiting challenges to summative evaluations only,
elimination of reference to the certification of DPAS II
evaluators, and elimination of the provisions addressing a
pilot. In addition, the rubrics for Domain 1 of the Delaware
Performance Appraisal System for Administrators.
C. IMPACT CRITERIA
1. Will the new regulation help improve student
achievement as measured against state achievement
standards? The new regulation will help improve student
achievement as measured against state achievement
standards by evaluating educator performance and
promoting professional growth of educators. The student
improvement domain is directly related to student
achievement as measured against state achievement
standards.
2. Will the new regulation help ensure that all students
receive an equitable education? The new regulation deals
with educator evaluation, not student equity. However,
ensuring that all educators are evaluated using a rigorous
system which focuses on both performance and professional
growth of educators helps to ensure that students receive an
equitable education.
3. Will the new regulation help to ensure that all
students' health and safety are adequately protected? The
new regulation addresses educator evaluation, not students'
health and safety.
4. Will the new regulation help to ensure that all
students' legal rights are respected? The new regulation
addresses educator evaluation, not students' legal rights.
5. Will the new regulation preserve the necessary
authority and flexibility of decision makers at the local board
and school level? The new regulation will preserve the
necessary authority and flexibility of decision makers at the
local board and school level.
6. Will the new regulation place unnecessary
reporting or administrative requirements or mandates upon
decision makers at the local board and school levels? The
new regulation will not place unnecessary reporting or
administrative requirements or mandates upon decision
makers at the local board and school levels.
7. Will decision making authority and accountability
for addressing the subjects to be regulated be placed in the
same entity? The decision-making authority and
accountability for addressing the subjects to be regulated
rests with the Professional Standards Board, in collaboration
and cooperation with the Department of Education, and with
the consent of the State Board of Education.
8. Will the new regulation be consistent with, and not
an impediment to, the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies? The new regulation will be consistent with, and not
an impediment to, the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies.
9. Is there a less burdensome method for addressing
the purpose of the new regulation? 14 Del. C. requires that
we promulgate this regulation.
10. What is the cost to the state and to the local school
boards of compliance with the new regulation? There is no
additional cost to local school boards for compliance with
the regulation.
1504 Delaware Performance Appraisal System for
Administrators
1.0 The Delaware Performance Appraisal System
II) for Administrators is a system for evaluating the
performance of administrators and for promoting
professional growth of administrators. In accordance with
14 Del. C. § 1270, this regulation shall be applied to all
administrators who are employed by a Delaware public
school, including charter schools, who hold a license under
the provisions of Chapter 12 of Title 14 of the Delaware
Code.
(DPAS
2.0 Definitions: The following words and terms, when used
in this regulation, shall have the following meaning unless
the context clearly indicates otherwise:
"Achievement gap" means the difference in
performance between the overall performance of the
reference group of students (i.e., Caucasians or non lowincome
students) and target groups of students (i.e.,
Hispanic, African-American, low-income, etc.)
"Administrator" means an educator who is licensed
and certified as an administrator and is employed in an
instructional role in a school district or charter school.
"Assistance Plan" means an improvement plan which
identifies deficiencies in an administrator's performance and
defines activities required to improve the deficiencies to a
basic or proficient level for novice administrators, and to
proficient level for experienced administrators.
"Basic" means performance characteristic of novice
administrators. The practice is inconsistent or uneven. The
administrator knows what to do, but cannot consistently act
upon this knowledge.
"Basic performance in a domain" means the
administrator appears to understand the concepts underlying
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 15
the standards, and attempts to implement their elements, but
implementation is sporadic, intermittent, or otherwise not
entirely successful.
"Basic performance on a summative evaluation"
means the administrator receives at least four basic ratings
and no unsatisfactory rating among the four domains under
the summative evaluation.
"Conclusions" means any final determination of an
administrator's overall performance as distinguished,
proficient, basic or unsatisfactory.
"Component" as used herein, means one of the sections
of a domain, as distinguished from "component" as it is used
in 14 Del. C., § 1270, where it means a major section of the
DPAS II system.
"Delaware Administrator Standards" means
standards for education administrators approved by the State
Board, as per 14 Del. Admin. Code 1594, Delaware
Administrator Standards.
"Chronic failure by parents to abide by the Parents'
Declaration of Responsibilities" means multiple failures by
parents to respond to communications from teachers or other
school officials and/or failure to attend conferences as
requested.
"Delaware Performance Appraisal System II"
(DPAS II) means the educator evaluation system developed
and implemented pursuant to 14 Del. C., § 1270.
"Department" means the Delaware Department of
Education.
"Distinguished" means performance characteristic of
master administrators.
"Distinguished performance in a domain" means that
the administrator is a master administrator and makes a
contribution to field, both in and outside of their school or
district.
"Distinguished performance on a summative
evaluation" means the administrator receives four
distinguished ratings, among the four domains of the
summative evaluation.
"Distribution in student achievement" means the
distribution of scores among all students, including those
scores disaggregated by income level, gender, race, special
education status, and limited English proficiency
"DSTP" means the Delaware Student Testing Program,
and includes DSTP I (reading, writing, and mathematics in
grades 3, 5, 8, and 10 and science and social studies in
grades 4, 6, 8, and 11), and DSTP II (reading, writing, and
mathematics in grades 2, 4, 6, 7, and 9) and work sampling at
grades K and 1).
"Domain" means one of the sections of the Delaware
Performance Appraisal System II and, as used herein, means
the same as component in 14 Del. § 1270 (9c).
"Educator" means a public school employee who holds
a license issued under the provisions of 14 Del. C., Chapter
12, and includes teachers, specialists, and administrators,
and as otherwise defined by the Standards Board and State
Board but does not include substitute teachers.
"Evaluator" means an individual or a team who has the
credentials to appraise educator performance, as set forth in
the rules and regulations promulgated under 14 Del. C, §
1271.
"Experienced administrator" means an administrator
who holds a continuing or advanced license and has more
than three years of experience in the role in which the
administrator is employed.
"Frameworks for School Leaders" means a
framework of professional practice for educators as set forth
in A Framework for School Leaders: Linking the Interstate
School Leaders Licensure Consortium's "Standards for
School Leaders" to Practice (ETS, 2001).
"ISLLC" means Interstate School Leaders Licensure
Consortium.
"Mitigating factors" means factors set forth in 14 Del.
C. § 1270(c) which must be taken into consideration in
measuring student improvement and which include student
absence, student mobility, student chronic noncompliance
with school rules, chronic failure by parents to abide by the
Parents' Declaration of Responsibilities and other factors
that may affect an administrator's evaluation.
"Multiple measures" means student performance on
district administered tests pursuant to 14 Del. C. 253(3)(1);
student performance assessments, such as end-of-unit or
end-of-course assessments, student classroom work
products; and classroom grades supported by evidence of
student work that demonstrates a student's performance.
"Novice administrator" means an administrator with
less than three years of experience in the role or new to
Delaware.
"Other factors that may adversely affect an
administrator's evaluation" include, but are not limited to,
environmental disruptions over which the administrator has
no control, an external event, such as the death or serious
injury of a student, which impacts the school or district, as
may be jointly agreed upon by the administrator and the
evaluator.
"Overall performance rating" means a summative
rating of an administrator's performance on DPAS II.
"Pattern of ineffective administration" means a
summative evaluation rating of "unsatisfactory", "basic, or a
combination of basic and unsatisfactory performance on a
summative evaluation for a period of two consecutive years.
"Professional development activities" means activities
designed to enhance knowledge and skill to promote
continuous professional growth and to improve
administrator performance.
"Proficient" means there is clear evidence that the
administrator know what to do and does it.
"Proficient performance in a domain" means the
administrator clearly understands the concepts underlying
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
16 PROPOSED REGULATIONS
the domain and implements them well.
"Proficient performance on a summative evaluation"
means the administrator receives no unsatisfactory ratings,
and no more than one basic rating among the four domains
of the summative evaluation and does not meet the criteria
for a distinguished rating.
"Rubric survey" is a survey of an administrators's
performance on the ISLLC standards which is completed by
the administrator, the evaluator, and the individuals directly
supervised by the administrator. The evaluator uses data
collected from the completed surveys to inform the overall
rating on Domain 1.
"Satisfactory performance for administrators"
means a summative score of proficient or higher rating in all
of the four areas of the Delaware Performance Appraisal
System for Administrators or a cumulative score of eight or
higher.
"School performance classification" means the
official accountability rating assigned to the school pursuant
to 14 Del. C. § 154.
"School or district improvement plan" means a
comprehensive plan, pursuant to 14 Del. C., § 805,
developed by the school community which sets forth goals
tied to state and local academic performance standards,
strategies to achieve those goals, and resources needed to
implement strategies. As used herein, it also means the
strategic plan maintained by each school district, pursuant to
14 Del. Admin. Code 215.
"Secretary" means the Secretary of the Delaware
Department of Education.
"Standards Board" means the Professional Standards
Board established pursuant to 14 Del. C, § 1201.
"State Board" means the State Board of Education of
the State of Delaware established pursuant to 14 Del. C, §
104.
"Student absence" means a student misses more than
15% of class time in a school year.
"Student chronic noncompliance with school rules"
means two or more documented violations of district or
charter school code of conduct.
"Student improvement" means growth over time on
the DSTP and other assessment measures toward curriculum
standards, as jointly determined by the administrator and the
evaluator.
"Student mobility" means a student attends one school
for less than an entire academic year from September 30
through May 31.
"Summative evaluation" means a collection of
evidence which results in a summary of an administrator's
performance over time.
"Unsatisfactory" means the administrator does not yet
appear to understand the concepts underlying the
component.
"Unsatisfactory performance in a domain" means the
administrator does not yet appear to understand the concepts
underlying the domain. The administrator's performance in
that domain is unacceptable.
"Unsatisfactory performance on a summative
evaluation" means an administrator receives one or more
unsatisfactory ratings in the four domains of the summative
evaluation.
"Variety of assessments" means pre- and post-testing,
on-line scores, performances, portfolios, oral presentations,
and projects appropriate to the content being assessed.
3.0 Delaware Performance Appraisal System II (DPAS II)
for Administrators: There shall be four components of the
Delaware Performance Appraisal System for
Administrators.
3.1 The domains of DPAS II for Administrators are as
follows:
3.1.1 Domain 1: Assessment of Leader
Standards provides a direct assessment of the school leader's
proficiency on the Delaware Administrator Standards, also
known as the Interstate School Leaders Licensure
Consortium (ISLLC) Standards (Council of Chief State
School Officers, 1996). The rubrics, as described in
Frameworks for School Leaders (ETS, 2001), are to be used
as a guide to inform dialogue for both the administrator and
the evaluator. The evaluator is not required to assess every
component of the standards in the course of an evaluation.
3.1.1.1 Standard 1: The Vision of Learning --
The school administrator is an educational leader who
promotes the success of all students by facilitating the
development, articulation, implementation, and stewardship
of a vision for learning that is shared and supported by the
community.
3.1.1.2 Standard 2: The Culture of Teaching
and Learning --A school administrator is an educational
leader who promotes the success of all students by
advocating, nurturing, and sustaining a school culture and
instructional program conducive to student learning and staff
professional growth.
3.1.1.3 Standard 3: The Management of
Learning A school administrator is an educational leader
who promotes the success of all students by ensuring
management of the organization, operations, and resources
for a safe, efficient, and effective learning environment.
3.1.1.4 Standard 4: Relationships with the
Broader Community to Foster Learning - A school
administrator is an educational leader who promotes the
success of all students by collaborating with families and
community members, responding to diverse community
interests and needs, and mobilizing community resources.
3.1.1.5 Standard 5: Integrity, Fairness, and
Ethics in Learning -- The school administrator is an
educational leader who promotes the success of all students
by acting with integrity, with fairness, and in an ethical
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
--
PROPOSED REGULATIONS 17
manner.
3.1.1.6 Standard 6: The political, social,
economic, legal, and cultural context learning A school
administrator is an educational leader who has the
knowledge and skills to promote the success of all students
by understanding, responding to, and influencing the larger
political, social, economic, legal, and cultural contexts.
LEVEL OF PERFORMANCE
STANDARD UNSATISFACTORY BASIC PROFICIENT DISTINGUISHED
1a: The Vision of
Learning
There is little or no evidence
that the school leader
facilitates the development,
articulation, implementation,
and stewardship of a vision
for learning that is shared and
supported by the community.
There is limited evidence that
the school leader facilitates
the development, articulation
implementation, and
stewardship of a vision for
learning that is shared and
supported by the community.
There is clear evidence that the
school leader facilitates the
development, articulation,
implementation, and
stewardship of a vision for
learning that is shared and
supported by the community.
There is clear, convincing, and
consistent evidence that the school
leader facilitates the development,
articulation, implementation, and
stewardship of a vision for learning
that is shared and supported by the
community.
1b: The Culture of
Teaching and
Learning
There is little or no evidence
that the school leader
advocates, nurtures, and
sustains a school culture and
instructional program
conducive to student learning
and staff professional growth.
There is limited evidence that
the school leader advocates,
nurtures, and sustains a
school culture and
instructional program
conducive to student learning
and staff professional growth.
There is clear evidence that the
school leader advocates,
nurtures, and sustains a school
culture and instructional
program conducive to student
learning and staff professional
growth.
There is clear, consistent, and
convincing evidence that the school
leader advocates, nurtures, and
sustains a school culture and
instructional program conducive to
student learning and staff
professional growth.
1c: The
Management of
Learning
There is little or no evidence
that the school leader ensures
management of the
organization, operations, and
resources for a safe, efficient,
and effective learning
environment.
There is limited evidence that
the school leader ensures
management of the
organization, operations, and
resources for a safe, efficient,
and effective learning
environment.
There is clear evidence that the
school leader ensures
management of the
organization, operations, and
resources for a safe, efficient,
and effective learning
environment.
There is clear, consistent, and
convincing evidence that the school
leader ensures management of the
organization, operations, and
resources for a safe, efficient, and
effective learning environment.
1d: Relationships
with the Broader
Community to
Foster Learning
There is little or no evidence
that the school leader
collaborates with families
and community members,
responds to diverse
community interests and
needs, and mobilizes
community resources.
There is limited evidence that
the school leader collaborates
with families and community
members, responds to diverse
community interests and
needs, and mobilizes
community resources.
There is clear evidence that the
school leader collaborates with
families and community
members, responds to diverse
community interests and needs,
and mobilizes community
resources.
There is clear, consistent, and
convincing evidence that the school
leader collaborates with families
and community members, responds
to diverse community interests and
needs, and mobilizes community
resources.
1e: Integrity,
Fairness, and
Ethics in Learning
There is little or no evidence
that the school leader acts
with integrity, with fairness,
and in an ethical manner.
There is limited evidence that
the school leader acts with
integrity, with fairness, and in
an ethical manner.
There is clear evidence that the
school leader acts with
integrity, with fairness, and in
an ethical manner.
There is clear, consistent, and
convincing evidence that the school
leader acts with integrity, with
fairness, and in an ethical manner.
1f: The Political,
Social, Economic,
Legal, and Cultural
Context
There is little or no evidence
that the school leader has the
knowledge and skills to
understand, respond to, and
influence the larger political,
social, economic, legal, and
cultural contexts.
There is limited evidence that
the school leader has the
knowledge and skills to
understand, respond to, and
influence the larger political,
social, economic, legal, and
cultural contexts.
There is clear evidence that the
school leader has the
knowledge and skills to
understand, respond to, and
influence the larger political,
social, economic, legal, and
cultural contexts.
There is clear, consistent, and
convincing evidence that the school
leader has the knowledge and skills
to understand, respond to, and
influence the larger political, social,
economic, legal, and cultural
contexts.
Adapted from the Interstate School Leaders Licensure Consortium Standards for
School Leaders, Council of Chief State Officers, 1996.
3.1.2 Domain 2: Assessment on Goals and
Priorities provides an assessment of progress on goals which
connect to the standards, are organizationally grounded and
emphasize the contributions of the leader, are anchored in
analysis of data, and which are mutually established by the
administrator and the evaluator.
3.1.2.1 The evaluator and the
administrator will meet to establish, and agree upon, the
number and substance of the goals the administrator will
focus on for the year. They will agree upon a target
performance for each goal, and what levels of performance
constitute "unsatisfactory", "basic", "proficient", or
"distinguished" for each goal. The agreed upon goals and
target performances shall constitute Domain 2, which will be
unique for each administrator. In the event that the evaluator
and the administrator are unable to agree upon the goals and
target performances for Domain 2, the evaluator will
establish goals and target performances for the
administrator.
3.1.2.2 Domain 2: Assessment on Goals
and Priorities
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
18 PROPOSED REGULATIONS
LEVEL OF PERFORMANCE
Unsatisfactory Basic Proficient Distinguished
2a
District Goals and Priorities
There is no evidence
that the
administrator's goals
and ofessional
development
activities are aligned
to district goals and
superintendent/
Board priorities.
There is limited or
unclear evidence
that the
administrator's goals
and ofessional
development
activities are aligned
to district goals and
superintendent/
Board priorities.
There is clear and
convincing evidence
that the
administrator's
goals and
professional
development
activities are aligned
to district goals and
superintendent/
Board iorities.
Application of skills
and knowledge in
this area are clearly
visible.
There s clear, convincing, and
consistent evidence that the
administrator's goals and professional
development activities are aligned to
district goals and uperintendent/
Board priorities. Application of skills
and knowledge in this area are clearly
visible. Administrator sets goals in
collaboration ith others and
articulates them to the staff and
community.
2b
Goals & Priorities of the
Administrator
The als and
targets established at
the beginning of the
evaluation cycle,
listed below, were
not met. The targets
fell well below those
established the
evaluator and the
administrator.
The als and
targets established at
the beginning of the
evaluation e,
listed below, were
partially met. he
targets fell elow
those established by
the evaluator and the
administrator.
The oals and
targets established
at the beginning of
the evaluation cycle,
listed below, were
fully met. The
targets met ose
established by the
evaluator and the
administrator.
The goals and targets established at
the beginning of the evaluation cycle,
listed below, were fully met. The
targets exceeded those established by
the evaluator and the administrator.
pr
pr
pr
i
s
w
go
by
go
cycl
T
b
g
th
3.1.3 Domain 3: Assessment on the School targets is within the administrator's direct influence, or
or District Improvement Plan provides an assessment of the control. The agreed upon goals and target performances
extent to which a school or district reaches important goals shall constitute Domain 3, which will be unique for each
in the improvement plan. administrator. In the event that the evaluator and the
3.1.3.1 At the beginning of the administrator are unable to agree upon the goals and target
evaluation cycle, the evaluator and the administrator will performances for the Domain 3, the evaluator will establish
meet to review the school or district improvement plan. goals and target performances for the administrator.
During that meeting, the evaluator and the administrator will 3.1.3.2 Domain 3: Assessment on the School
identify specific goals and targets for the administrator with or District Improvement Plan
respect to the improvement plan and those aspects of the 3.1.4Domain 4: Assessment on Measures of
improvement plan where the achievement of those goals and
LEVEL OF PERFORMANCE
Unsatisfactory Basic Proficient Distinguished
3a
School or District
Improvement Plan
There is no evidence
that the administrator
had any influence,
implicit or explicit,
on the
accomplishment of
the school or district
improvement plan
goals.
There is limited or
unclear evidence that
the administrator had
any influence,
implicit or explicit,
on the
accomplishment of
the school or district
improvement plan
goals.
There is clear and
convincing evidence
that the administrator
had influence, both
implicit and explicit,
on the accomplishment
of the school or district
improvement plan
goals, and that a
limited group was
engaged with the
administrator in
planning.
There is clear, consistent and convincing
evidence that the administrator had
significant influence, both implicit and
explicit, on the accomplishment of the
school or district improvement plan goals.
The administrator used the skills and
knowledge in relation to the improvement
and has worked in collaboration with staff
and community, and articulated the
design to the staff and community.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 19
3b:
Unique School or District
Conditions
There is no evidence
that the administrator
identified goals that
focus on the school's
or district's unique
needs, challenges
and opportunities.
There is limited or
unclear evidence that
the administrator
identified goals that
focus on the school's
or district's unique
needs, challenges
and opportunities.
There is clear and
convincing evidence
that the administrator
identified goals that
focus on the school's
or district's unique
needs, challenges and
opportunities, and has
used these goals to
inform educational
decisions.
There is clear, convincing and consistent
evidence that the administrator identified
goals that focus on the school's or
district's unique needs, challenges and
opportunities. The administrator has
addressed the goals collaboratively with
others and articulates decisions/solutions
to staff and community.
Student Improvement provides an assessment of student in achieving those objectives in each of the three
performance based on data from the DSTP, and student components of the domain.
achievement in other areas. In the fall of the evaluation 3.1.4.1Domain 4: Student Improvement
cycle, the administrator and the evaluator will meet to
discuss the student improvement domain. Each party will
bring data to inform the process of mutually establishing
performance objectives and the criteria for defining success
LEVEL OF PERFORMANCE
Unsatisfactory Basic Proficient Distinguished
4a:
Uses data from the
DSTP school or district
performance
classification to make
instructional decisions
The DSTP school or
district performance
classification did not
meet the targets
established at the
beginning of the
evaluation cycle.
The scores fell well
below the targets
established by the
evaluator and the
administrator.
The DSTP school or
district performance
classification partially
met the targets
established at the
beginning of the
evaluation cycle. The
scores fell below the
targets established by
the evaluator and the
administrator.
The DSTP school or district
performance classification
fully met the targets
established at the beginning
of the evaluation cycle. The
scores met the targets
established by the evaluator
and the administrator.
The DSTP school or district
performance classification exceeded
the targets established at the beginning
of the evaluation cycle. The scores
exceeded the targets established by the
evaluator and the administrator.
4b:
Other Measures of
Student Improvement
Other measures of
student achievement
did not meet the
targets established at
the beginning of the
evaluation cycle.
The evidence
provided by the
other measures fell
well below the
targets established
by the evaluator and
the administrator.
Other measures of
student achievement
did not meet the
targets established at
the beginning of the
evaluation cycle. The
evidence provided by
the other measures
fell below the targets
established by the
evaluator and the
administrator.
Other measures of student
achievement met the targets
established at the beginning
of the evaluation cycle. The
evidence provided by the
other measures met the
targets established by the
evaluator and the
administrator.
Other measures of student achievement
met the targets established at the
beginning of the evaluation cycle. The
evidence provided by the other
measures exceeded the targets
established by the evaluator and the
administrator.
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20 PROPOSED REGULATIONS
4c:
Provides evidence of closing the
achievement gap
Is unaware of the
distribution in student
achievement or makes
no effort to close the
gap by addressing the
different needs of
individual students or
groups of students.
Measurable
discrepancies in
student learning
persist.
Is aware of the
distribution in
student
achievement and
makes a limited
effort to close the
gap by addressing
the different needs
of individual
students or groups
of students. The
gap in student
achievement is
beginning to close.
Is very aware of the
distribution in
student
achievement and
makes a concerted
effort to close the
gap by addressing
the different needs
of students or
groups of students.
There is clear
evidence that the
gap in student
achievement is
being closed.
Is proactive in addressing the
distribution in student achievement
and uses research-based strategies to
effectively close the gap by addressing
the different needs of individual
students or groups of students. There
is clear evidence that students are
achieving at higher levels and that the
distribution in student achievement is
being closed. The administrator keeps
the staff informed of their progress.
The administrator provides leadership
in the identification and use of
effective strategies to address the gap
in student achievement.
3.2 Pursuant to 14 Del. C. § 1270(c), mitigating factors,
including student absence, student mobility, student chronic
noncompliance with school rules, chronic failure by parents
to abide by the Parents' Declaration of Responsibilities, and
other factors which include, but are not limited to,
environmental disruptions over which the administrator has
no control, an external event, such as the death or serious
injury of a student, which impacts the school or district, as
may be jointly agreed upon by the administrator and the
evaluator, that may adversely affect an administrator's
evaluation must be taken into consideration in rating Domain
4, and must be included in any discussion between the
evaluator and administrator.
3.3 Each component within a domain shall be weighted
equally in determining an overall rating for an administrator.
Using a set of scoring guides, each domain will be rated
"distinguished", "proficient", "basic", or "unsatisfactory".
An annual summative evaluation shall be completed for each
administrator and shall result in a rating of "distinguished",
"proficient", "basic", or "unsatisfactory" for each domain
and an overall rating of performance.
3.3.1A rubric shall be used to rate each domain, as
well as to derive the overall rating of the DPAS II
evaluation.
3.3.1.1Distinguished: Administrators at this
level are master educational leaders and make a contribution
to the field, both in and outside their school and district.
3.3.1.2Proficient: The administrator clearly
understands the concept underlying the domain and
implements it well.
3.3.1.3Basic: The administrator appears to
understand the concepts underlying the domain and attempts
to implement its elements. Implementation is sporadic,
intermittent, or otherwise not entirely successful.
3.3.1.4 Unsatisfactory: The administrator
does not yet appear to understand the concepts underlying
the domain.
3.4 Summative Domain Ratings -- Administrators shall
receive an overall rating, annually, of "distinguished",
"proficient", "basic", or "unsatisfactory". Such rating shall
be a summative rating, arrived at in accordance with the
procedures for annual summative evaluation form based on
ratings on all four domains over the year.
3.5 Overall Performance on a Summative Evaluation.
3.5.1 Distinguished Performance on a
Summative Evaluation - The administrator receives four
distinguished ratings among the four domains of the
summative evaluation.
3.5.2 Proficient Performance on a Summative
Evaluation - The administrator receives no unsatisfactory
ratings, and no more than one basic rating among the four
domains of the summative evaluation and does not meet the
criteria for a distinguished rating.
3.5.3 Basic Performance on a Summative
Evaluation - The administrator receives at least four basic or
higher ratings and no unsatisfactory ratings among the four
domains under the summative evaluation and does not meet
the criteria for a rating of proficient or distinguished.
3.5.4 Unsatisfactory Performance on a
Summative Evaluation - The administrator receives one or
more unsatisfactory ratings in the four domains of the
summative evaluation.
3.5.5 Summative Evaluation Scoring Guide.
3.5.5.1 Evaluators use the summative
evaluation scoring guide set forth below to derive an overall
summative rating for the administrator evaluation.
DPAS II Summative Evaluation Rubric
4 0 0 0 Distinguished
3 1 0 0 Proficient
3 0 1 0 Proficient
2 2 0 0 Proficient
2 1 1 0 Proficient
1 3 0 0 Proficient
0 3 1 0 Proficient
3 0 1 0 Basic
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 21
2 0 2 0 Basic
1 2 1 0 Basic
1 1 2 0 Basic
1 0 3 0 Basic
0 2 2 0 Basic
0 0 4 0 Basic
0 1 3 0 Basic
2 0 1 1 Unsatisfactory
1 0 2 1 Unsatisfactory
1 2 0 1 Unsatisfactory
1 1 1 1 Unsatisfactory
1 1 0 2 Unsatisfactory
0 2 1 1 Unsatisfactory
0 2 0 2 Unsatisfactory
1 0 1 2 Unsatisfactory
0 1 2 1 Unsatisfactory
0 1 1 2 Unsatisfactory
0 1 0 3 Unsatisfactory
1 0 0 3 Unsatisfactory
0 0 3 1 Unsatisfactory
0 0 2 2 Unsatisfactory
0 0 1 3 Unsatisfactory
0 0 0 4 Unsatisfactory
3.6 Pattern of Ineffective Administration.
3.6.1 An administrator receives a summative
evaluation with an overall rating of unsatisfactory
performance for a period of two consecutive years.
3.6.2 An administrator receives a summative
evaluation with an overall rating of basic performance for a
period of two consecutive years.
3.6.3 An administrator receives summative
evaluations with any combination of basic and unsatisfactory
performance for two consecutive years.
3.6.4 An overall rating of unsatisfactory or basic
performance during the pilot year, if any, cannot be used in
establishing a pattern of ineffective administration.
4.0 Procedures for Novice Administrators.
4.1 Administrators who are in the first three years in a
given role will complete the self evaluation twice each year,
once by November 30 and once by April 30. The rubric
survey for Domain 1 will be completed in the same time
periods by those the administrator directly supervises. In the
case of a building level administrator, the survey will be
completed by all teachers directly supervised by the
administrator. In the case of a district level administrator,
the administrator and his/her supervisor shall jointly identify
those individuals who will complete the rubric survey. An
annual goal setting conference during which the
administrator and his/her supervisor establish goals, identify
evidence that will be used to make judgments, and agree
upon criteria by which achievement will be measured, will
take place in the early fall of the year. In the event that there
is lack of agreement on the goals and targets, the evaluator
will make the final determination. The administrator and the
supervisor shall hold a minimum of two conferences during
the school year to review progress toward goals and
objectives, and either the administrator or the supervisor
may request additional conferences, as necessary. A
formative evaluation conference form shall be completed
during each conference, and signed by both the administrator
and the evaluator. The supervisor will observe the
administrator at least twice each year to gather data to inform
the evaluator on the administrator's performance on the
domains. An annual summative evaluation shall be
completed for each administrator in the first three years in a
given role, and shall result in a rating for each component
and an overall performance rating of "distinguished",
"proficient", "basic", or "unsatisfactory". The administrator
may submit a summative evaluation response form within
ten days of receipt of the evaluation, which shall be
appended to the summative evaluation.
5.0 Procedures for Experienced Administrators.
5.1 Experienced administrators, those who have three
or more years in a role shall complete the self evaluation
twice each year, once by November 30 and once by April 30.
The rubric survey for Domain 1 will be completed in the
same time periods by those the administrator supervises. In
the case of a building level administrator, the survey will be
completed by all teachers directly supervised by the
administrator. In the case of a district level administrator,
the administrator and his/her supervisor shall jointly identify
those individuals who will complete the rubric survey. An
annual goal setting conference during which the
administrator and his/her supervisor establish goals, identify
evidence that will be used to make judgments, and agree
upon criteria by which achievement will be measured, will
take place in the fall of the year. In the event that there is
lack of agreement on the goals and targets, the evaluator will
make the final determination The administrator and the
supervisor shall hold a minimum of two conferences during
the school year, and either the administrator or the
supervisor may request additional conferences, as necessary.
The supervisor will observe the administrator at least twice
each year. An annual summative evaluation shall be
completed for each administrator in the first three years in a
given role, and shall result in a rating for each component
and an overall performance rating of "distinguished",
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
22 PROPOSED REGULATIONS
"proficient", "basic", or "unsatisfactory". The administrator
may submit a summative evaluation report response form
within 10 days of receipt of the report, which shall be
appended to the summative evaluation report.
6.0 Evaluators and administrators being evaluated shall sign
all evaluation forms indicating that the documents have been
reviewed.
7.0 Experienced administrators who receive a rating of
"proficient" or "distinguished" may be granted a waiver
from the required one year cycle. During the period in
which the waiver is in effect, the prescribed rubric surveys,
goal setting conferences and observations shall be conducted
over a two year period, beginning in the fall of one school
year and concluding in the spring of the following school
year.
8.0 The goal of an assistance plan is to provide a structured
vehicle to assist an administrator whose performance is
unsatisfactory to improve performance to a proficient level.
An assistance plan shall be developed for any administrator
whose performance is rated "unsatisfactory" on any domain
of DPAS II for Administrators or whose overall rating on the
annual summative evaluation is rated "unsatisfactory" or
"basic" on any domain of DPAS II for Administrators or
whose overall rating on the annual summative evaluation is
rated "unsatisfactory" or "basic" or receives a score of less
than eight. The criteria set forth in an assistance plan must
be designed to result in an overall summative rating of
"proficient" at the conclusion of the assistance plan.
8.1 Assistance plans must include the following:
8.1.1 Definition of the specific deficiencies,
which must be stated in terms of DPAS II rubrics for
evaluating the identified domain(s).
8.1.2 Measurable goals for improving the
deficiencies to satisfactory levels. All goals must be directly
linked to the Delaware Administrator Standards and DPAS
II rubrics.
8.1.3 Clear and specific professional
development activities (i.e., intervention strategies that
relate to the goals and objectives).
8.1.4 Resources for each professional
development activity must be identified and made accessible
to the administrator. Such resources may include, but are not
limited to, opportunities for the administrator to work with
mentors, curriculum specialists, and experienced
administrators to implement the Assistance Plan.
8.1.5 Evidence that must be provided and
behaviors that must be demonstrated at the end of the plan.
These expectations must be stated in terms of DPAS II
rubrics for evaluating the identified domain(s).
8.1.6 Procedures for evaluating and
documenting improvement.
8.1.7 Time lines, including intermediate
progress check-points and a final completion date, must be
specified. These dates may be adjusted by mutual agreement
of the administrator and the evaluator during the Assistance
Plan process.
8.1.8 A record of judgment of satisfactory or
unsatisfactory completion of the assistance plan and the date
completed, signed by the administrator and the evaluator. In
the event that a judgment of unsatisfactory completion is
made, follow-up procedures shall be set forth by the
evaluator to address the administrator's continued
deficiencies.
8.2 Assistance plan process. There is an expectation of
mutual development by the evaluator and the administrator
of the assistance plan. Both the evaluator and the
administrator complete a preliminary assistance plan, which
they meet to review and develop a final, mutually agreed
upon plan. In the event that consensus cannot be reached
between the evaluator and the administrator, the evaluator
will develop the assistance plan, which the administrator
must follow.
9.0 School districts and charter schools shall follow the
procedures and use forms and software developed by the
Department for implementation of DPAS II.
10.0 Challenge Process: A administrator may challenge the
fairness of the evaluation process and the overall conclusions
reached in the DPAS II summative evaluation.
10.1 An administrator may initiate a challenge by
filing a DPAS II challenge form with the evaluator within
ten (10) calendar days of receiving the written evaluation.
The challenge shall set forth the grounds for the challenge in
reasonable detail and shall identify the remedy sought.
10.2 Within ten (10) calendar days of receipt of the
challenge form, the evaluator shall provide a written
response and, if the remedy is granted, the revised evaluation
document shall replace the challenged document. If the
remedy sought is denied, the evaluator must state the reasons
for the denial.
10.3 If the administrator is not satisfied with the
decision of the evaluator, he/she may forward the challenge
form and supporting documentation to the District
Superintendent or charter school administrator or designee
for review. The superintendent or charter school
administrator or his/her designee shall be a trained, certified
evaluator and shall not be a building level administrator in
the same building as the administrator who filed the
challenge.
10.4 Within ten (10) calendar days of receipt of the
challenge form and supporting documentation, the District
Superintendent or charter school administrator or designee
shall provide a written response either supporting or not
supporting the challenge. If the remedy sought is granted,
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 23
the revised evaluation document replaces the challenged
document.
10.5 If the superintendent is the evaluator, the
provisions set forth in 10.3 and 10.4 above do not apply.
10.6 The decision of the District Superintendent or
charter school administrator or designee shall be final.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 107 (31 Del.C. §107)
PUBLIC NOTICE
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 107, Delaware Health and Social Services (DHSS) /
Division of Social Services / Medicaid/Medical Assistance
Program is proposing to amend the Title XIX Medicaid State
Plan and the Division of Social Services Manual (DSSM) to
establish the provisions relating to imposing and collecting
copayments for pharmaceutical services from Medicaid/
Medical Assistance clients.
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 Sharon L. Summers, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware 19720-0906 by July 31, 2003.
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.
Summary Of The Pharmacy Services Co-payment Policy
This notice is being given to provide information of
public interest with respect to the intent of DSS to amend the
Division of Social Services Manual (DSSM) and to submit
to the Centers for Medicare and Medicaid Services (CMS)
an amendment to the Title XIX Medicaid State Plan to
establish and implement copayments for pharmacy services.
The following provisions of this amendment shall be
effective on and after October 1, 2003:
• All clients, other than those specifically excluded,
are liable for sharing the cost of Medicaid covered
prescription drugs. Medicaid clients are required to
pay a specific pharmacy co-pay amount for each
prescription filled at a pharmacy participating in the
Medicaid program.
• In accordance with 42 CFR §447.54, the pharmacy
co-pay amount is based on the Medicaid fee for the
drug being dispensed. The co-pay amounts
imposed are as follows:
Medicaid Fee Co-Pay Amount
<$10.00 $ .50
$10.01-$25.00 $1.00
$25.01-$50.00 $2.00
>$50.01 or more $3.00
• Cumulative Maximum [42 CFR §447.54(d)]. Not
applicable, there is no maximum.
• In accordance with Social Security Act §1916 and
42 CFR §447.53, copayments are not imposed upon
categorically needy individuals for the following:
• Services furnished to individuals under 21 years of
age;
• Services furnished to pregnant women;
• Services furnished to any individual who is an
inpatient in a hospital, long-term care facility, or
other medical institution;
• Emergency services;
• Family Planning services; and,
• Services furnished to individuals receiving hospice
care.
• The pharmacy will be advised via the Point-of-Sale
System regarding the client's liability for the drug
co-pay and the amount of the co-pay. When a client
advises a pharmacy of an inability to pay the
applicable co-pay amount at the time the first
prescription is filled, the pharmacy must dispense
the drug as prescribed, and will be responsible for
pursuing reimbursement of the outstanding co-pay
amount.
• Providers may refuse to serve only those Medicaid
clients who are subject to the co-pay where the
following conditions are met:
a) The policy of the pharmacy covering
refusal to serve clients because of non-payment of any costsharing
amounts must apply to all clients, private-pay,
commercially-insured, or public;
b) The client has one or more outstanding copays;
c) The client has made no arrangement to
reimburse for all outstanding co-pays;
d) Notification of the refusal to provide
service is carried out in the same manner as is done for all
clients who have outstanding cost-sharing obligations.
• The client will remain liable for reimbursement of
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
24 PROPOSED REGULATIONS
the co-pay amount and will be responsible for
paying the pharmacy when financially able.
• Medicaid will not pay the co-pay amount to the
pharmacy where a client declares an inability to
pay. Provider payment will continue to be that sum
which is the Medicaid fee minus the applicable
client copay amount.
The proposed amendment applies to Medicaid clients.
Specific cost sharing requirements are subject to
approval by the Centers for Medicare and Medicaid Services
(CMS).
DSS PROPOSED REGULATION #03-21a
Revision: HCFA-PM-91-4 (BPD) OMB No.:0938-
AUGUST 1991
State/Territory: DELAWARE
Citation 4.18 Recipient Cost Sharing and Similar
42 CFR 447.51 Charges
through 447.58 (a) Unless a waiver under 42 CFR
431.55(g) applies deductibles,
coinsurance rates, and
copayments do not exceed the
maximum allowable charges
under 42 CFR 447.54.
1916 (a) and (b) (b) Except as specified in items 4.18
of the Act (b) (4), (5) and (6) below, respect
to individuals covered as
categorically needy or as
qualified Medicare beneficiaries
(as defined in section 1905 (p)
(1) of the Act under the plan:
(1) No enrollment fee, premium,
or similar charge is imposed
under the plan.
(2) No deductible, coinsurance,
copayment, or similar charge
is imposed under the plan for
the following:
(i) Services to individuals
under age 18, or under-­Age
19
Age 20
. Age 21
Reasonable categories
of individuals who are
age 18 or older, but
under age 21, to whom
charges apply are listed
below, if applicable.
(ii) Services to pregnant
women related to the
pregnancy or any other
medical condition that
may complicate the
pregnancy.
(iii) All services furnished to
pregnant women.
Not applicable.
Charges apply for
services to pregnant
women unrelated to
the pregnancy.
(iv) Services furnished to
any individual who is an
inpatient in a hospital,
long-term care facility,
or other medical
institution, if the
individual is required, as
a condition of receiving
services in the
institution, to spend for
medical care costs all
but a minimal amount of
his or her income
required for personal
needs.
(v) Emergency services if
the services meet the
requirements in 42 CFR
447.53 (b) (4).
(vi) Family planning
services and supplies
furnished to individuals
of childbearing age.
(vii)Services furnished by a
health maintenance
organization in which
the individual is
enrolled.
1916 of the Act, (viii)Services furnished to an
P.L. 99-272, individual receiving
(Section 9505) hospice care, as defined
in section 1905 (o) of
the Act.
(3) Unless a waiver under 42 CFR
431.55 (g) applies, nominal
deductible, coinsurance,
copayment, or similar charges are
imposed for services that are not
excluded from such charges
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 25
under item (b) (2) above.
Not applicable. No such
charges are imposed.
(i) For any service, no more
than one type of charge
is imposed.
(ii) Charges apply to
services furnished to the
following age groups:
18 or older
19 or older
20 or older
. 21 or older
Charges apply to
services furnished
to the following
reasonable
categories of
individuals listed
below who are 18
years of age or
older but under age
21.
(iii) For the categorically
needy and qualified
Medicare beneficiaries,
ATTACHMENT 4.18-
A specifies the:
A. Service(s) for
which a charge(s) is
applied;
B. Nature of the
charge imposed on
each service;
C. Amount(s) of and
basis for
determining the
charge(s);
D. Method used to
collect the
charge(s);
E. Basis for
determining
whether an
individual is unable
to pay the charge
and the means by
which such an
individual is
identified to
providers;
F. Procedures for
implementing and
enforcing the
exclusions from
cost sharing
contained in 42
CFR 447.53 (b);
and
G. Cumulative
maximum that
applies to all
deductible,
coinsurance or
copayment charges
imposed on a
specified time
period.
. Not applicable.
There is no
maximum.
1916 (c) of 4.18 (b)(4) A monthly premium is imposed
the Act on pregnant women and infants
who are covered under section
1902 (a) (10) (A) (ii) (IX) of the
Act and whose income equals or
exceeds 150 percent of the
Federal poverty level applicable
to a family of the size involved.
The requirements of section 1916
(c) of the Act are met.
ATTACHMENT 4.18-D
specifies the method the State
uses for determining the premium
and the criteria for determining
what constitutes undue hardship
for waiving payment of
premiums by recipients.
1902 (a) (52) (5) For families receiving
extended and 1925 (b)benefits
during a second 6-month of the
Actperiod section 1925 of the
Act, a monthly premium is
imposed in accordance with
sections 1925 (b) (4) and (5) of
the Act.
1916 (d) of (6) A monthly premium, set on a
the Act sliding scale, imposed on
qualified disabled and working
individuals who are covered
under section 1902 (a) (10) (E)
(ii) of the Act and whose income
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
26 PROPOSED REGULATIONS
exceeds 150 percent (but does not ATTACHMENT 4.18-E
exceed 200 percent) of the Specifies the methods and
Federal poverty level applicable standards the State uses for
to a family of the size involved. determining the premium.
The requirements of section 1916
(d) of the Act are met.
NEW STATE PLAN PAGE
Revision: CMS-PM-85-14 (BERC) ATTACHMENT 4.18-A
SEPTEMBER 1985 Page 1
OMB NO.: 093-0193
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT
STATE: DELAWARE
A. The following charges are imposed on the categorically needy for services other than those provided under section
1905 (1) through (5) and (7) of the Act:
Service
Type of Charge
Deductible Coinsurance Copayment
Amount and Basis for Determination
Pharmacy -0- -0- X
This co-pay is effective October 1, 2003 and is
based on the nominal ranges specified in 42 CFR
447.54(a)(3), based on the State fee for the service.
NEW STATE PLAN PAGE ATTACHMENT 4.18-A
Revision: CMS-PM-85-14 (BERC) Page 2
SEPTEMBER 1985 OMB NO.: 093-0193
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT
STATE: DELAWARE
B. The method used to collect cost sharing charges for categorically needy individuals:
. Providers are responsible for collecting the cost sharing charges from individuals.
The agency reimburses providers the full Medicaid rate for services and collects the cost sharing charges from
individuals.
C. The basis for determining whether an individual is unable to pay the charge, and the means by which such an individual is
identified to providers, is described below:
The Pharmacy (Pharmacist) Provider will be advised via the Point-of-Sale System regarding the client's liability for the
drug co-pay and the amount of the co-pay. When a client advises a pharmacy of an inability to pay the applicable co-pay
amount at the time the first prescription is filled, the pharmacy must dispense the drug as prescribed, and will be responsible
for pursuing reimbursement of the outstanding co-pay amount. Providers may refuse to serve only those Medicaid clients who
are subject to the co-pay where the following conditions are met: 1) The policy of the pharmacy covering refusal to serve
clients because of non-payment of any cost-sharing amounts must apply to all clients, private-pay, commercially-insured, or
public; 2) The client has one or more outstanding co-pays; 3) The client has made no arrangement to reimburse for all
outstanding co-pays; 4) Notification of the refusal to provide service is carried out in the same manner as is done for all clients
who have outstanding cost-sharing obligations.
The client will remain liable for reimbursement of the co-pay amount and will be responsible for paying the pharmacy
when financially able. Medicaid will not pay the co-pay amount to the pharmacy where a client declares an inability to pay.
Provider payment will continue to be that sum which is the Medicaid fee minus the applicable client copay amount.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 27
NEW STATE PLAN PAGE ATTACHMENT 4.18-A
Revision: CMS-PM-85-14 (BERC) Page 3
SEPTEMBER 1985 OMB NO.: 093-0193
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT
STATE: DELAWARE
D. The procedures for implementing and enforcing the exclusions from cost sharing contained in 42 CFR 447.53 (b) are
described below:
Exclusions from cost sharing requirements are programmed into the Medicaid Management Information System and
the Point-of-Sale (POS) System.
Pharmacy Providers have been informed about applicable service and amount; and, the prohibition of service denial
if client is unable to meet the co-pay amount by the following methods: (1) provider manuals, which are distributed to all
providers; and (2) provider newsletters.
Copayment requirements are set forth in provider manuals, which are distributed, to all providers. The billing
instructions are updated and transmitted to providers via the Provider Newsletter. These instructions have been incorporated
in the billing instruction section of the provider manuals, which are given to all providers.
E. Cumulative maximums on charges:
. State policy does not provide maximums.
Cumulative maximums have been established as described below:
14960 Cost Sharing
Section 1902(a)(14) of the Social Security Act permits
states to require certain recipients to share some of the costs
of Medicaid by imposing upon them such payments as
enrollment fees, premiums, deductibles, coinsurance, copayments
or similar cost sharing charges.
14960.1 Co-Payment Requirement
Effective October 1, 2003, a nominal co-payment
will be imposed for generic and brand name prescription
drugs as well as over-the-counter drugs prescribed by a
practitioner.
The co-payment is based upon the cost of the drug
as follows:
The co-payment is imposed for each drug that is
prescribed and dispensed.
14960.2 Exclusions from Co-payment Requirement
The following individuals and services are
excluded from the co-payment requirement:
a. individuals under age 21
b. pregnant women including the postpartum
period
c. individuals eligible for nursing home care
d. emergency services
e. family planning services and supplies
f. hospice services
14960.3 Inability to Pay
The pharmacy provider may not refuse to dispense
the initial prescription(s) subject to the co-payment
requirement on account of the individual's inability to pay
the co-payment amount. When a recipient indicates that he
or she is unable to meet the co-payment requirement, the
pharmacy provider must dispense the initial prescription(s).
Medicaid reimbursement for the prescription(s) will be the
Medicaid fee minus the applicable co-payment amount.
The recipient remains liable for the co-payment
amount and is responsible for paying the pharmacy when
financially able. The pharmacy provider is permitted to
pursue reimbursement of the co-pay from the recipient. The
pharmacy provider may refuse to dispense future
prescription(s) because of any outstanding co-payment
amount.
Medicaid Payment for the
Drug
Co-payment
$10.00 or less $.50
$10.01 to $25.00 $1.00
$25.01 to $50.00 $2.00
$50.01 or more $3.00
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
28 PROPOSED REGULATIONS
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 107 (31 Del.C. §107)
PUBLIC NOTICE
MEDICAID/MEDICAL ASSISTANCE STANDARDS
FOR PAYMENT OF RESERVED BEDS DURING
ABSENCE FROM LONG-TERM CARE FACILITIES
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and under the authority of Title 31 of the
Delaware Code, Chapter 5, Section 107, Delaware Health
and Social Services/Division of Social Services (DHSS/
DSS) publishes this notice pursuant to federal law and
regulations in 42 CFR §§447.40 and 447.205. Under
Medicaid payment regulations in 42 CFR §447.40, federal
financial participation (FFP) is available if a State plan
includes provision for bed-reservation payments during a
recipient's temporary absence from an inpatient facility.
Current state plan provision required Medicaid to make
payments to long term care facilities to ensure a bed is
reserved for a Medicaid recipient who is temporarily absent
from the long-term care facility due to hospitalization or
leave of absence. Bed reservation payments are limited to
fourteen (14) days per hospitalization in any 30-day period.
This notice is being given to provide information of public
interest with respect to the intent of DSS to amend the
Division of Social Services Manual (DSSM) and to submit
to the Centers for Medicare and Medicaid Services (CMS)
an amendment to the Title XIX Medicaid State Plan to
reduce "bed hold days" from fourteen (14) to seven (7) days
per hospitalization in any 30-day period, effective October 1,
2003.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning this notice must submit same to Sharon
L. Summers, Policy and Program Implementation Unit,
Division of Social Services, P.O. Box 906, New Castle,
Delaware 19720-0906 by July 31, 2003.
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.
STATE PLACE UNDER TITLE XIX UNDER THE
SOCIAL SECURITY ACT
ESTABLISHMENT AND MAINTENANCE OF STATE
AND FEDERAL STANDARDS
STATE OF DELAWARE
ATTACHMENT 4.19-C
Standards for Payment of Reserved Beds During
Absence from Long-Term Care Facilities
Payment will be made for reserving beds in long-term
care facilities for recipients during their temporary absence
for the following purposes:
1. For periods of hospitalization for acute
conditions up to 14 7 days per hospitalization
in any 30-day period.
2. For leaves of absence up to 18 days per
calendar year as provided for in the recipient's
plan of care.
3. The 18-day leave of absence may be waived as
follows:
If a recipient's physical condition is being
negatively impacted by their emotional need to
be in a family setting, prior approval may be
obtained for a waiver of the 18-day leave of
absence limitation (for other than acute care
hospitalization from the Title XIX Medical
Consultant in order to allow the patient more
time to visit with their family, as long as such
absences are provided for in the recipient's
written plan of care.
To obtain approval, a written request must
be submitted by the nursing home to the
Nursing Home Coordinator and must include:
1. reason for the request
2. medical summary
3. statement from the nursing home's
medical director regarding the
medical necessity of the patient being
absent from the home in excess of 18
days per year.
4. anticipated frequency of absence.
The number of days waived must fall
within a six-month period.
Any request for a waiver after the sixmonth
limit must be resubmitted and approved
for payment to be continued.
Division of Social Services Manual (DSSM)
DSSM 20650 Temporary Absence from Nursing Home
for Hospitalization
If a recipient is hospitalized for a short period of time
and is expected to return to the facility, payment to the
facility may continue for a period of not more than 14 seven
(7) days provided the nursing home agrees to hold the bed
for the resident. Medicaid reimbursement is available for no
more than 14 seven (7) days within any 30-day period. The
30-day count begins with the first day of hospitalization. If
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 29
payments are suspended because the recipient remains
hospitalized more than 14 seven (7) days and the 30 count
expires, a new 30 day count starts with readmission to the
nursing home.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 107 (31 Del.C. §107)
PUBLIC NOTICE
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 107, Delaware Health and Social Services (DHSS) /
Division of Social Services / Food Stamp Program is
proposing to amend its policy as it relates to the food stamp
benefits to certain qualified aliens. These mandatory
provisions must be implemented on October 1, 2003, in
accordance with Title IV of the Farm Security and Rural
Investment Act of 2002.
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 Sharon L. Summers, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware 19720-0906 by July 31, 2003.
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.
Summary Of Proposed Change
Restores food stamp eligibility to qualified aliens who
are under the age of eighteen (18) regardless of their date of
entry and who are otherwise eligible. Current law requires
them to have been in the country on August 22, 1996.
DSSM 9007.1 Citizenship and alien status
Household members meeting citizenship or alien status
requirements.
The following residents of the United States are eligible
to participate in the Food Stamp Program without limitations
based on their citizenship/alienage status:
1. Persons born in the 50 states and the District of
Columbia, Puerto Rico, Guam, Virgin Islands, and the
Northern Mariana Islands. Children born outside the United
States are citizens if at least one of the parents is a citizen;
2. Naturalized citizens or a United States noncitizen
national (person born in an outlaying possession of
the United States, like American Samoa or Sawin's Island,
or whose parents are U.S. non-citizen nationals;
3. Individuals who are:
(A) An American Indian born in Canada who
possesses at least 50 per centum of blood of the American
Indian race to whom the provisions of section 289 of the
Immigration and Nationality Act (INA) apply;
(B) A member of an Indian tribe as defined in
section 4(e) of the Indian Self-Determination and Education
Assistance Act which is recognized as eligible for the special
programs and services provided by the U. S. to Indians
because of their status as Indians;
(C) Lawfully residing in the U. S. and was a
member of a Hmong or Highland Laotian tribe at the time
that the tribe rendered assistance to U. S. personnel by taking
part in a military or rescue operation during the Vietnam era
beginning August 5, 1964, and ending May 7, 1975;
(i) The spouse or surviving spouse of
such Hmong or Highland Laotian who is deceased, or
(ii) An unmarried dependent child of such
Hmong or Highland Laotian who is under the age of 22; an
unmarried child under the age of 18 or if a fulltime student
under the age of 22 of such a deceased Hmong or Highland
Laotian provided that the child was dependent upon him or
her at the time of his or her death; or an unmarried disabled
child age 18 or older if the child was disabled and dependent
prior to the child's 18th birthday.
4. Individuals who are eligible indefinitely due to
being:
(A) lawfully admitted for permanent residence
(LPR) who can be credited with 40 quarters of work as
determined under Title II of the Social Security Act,
including qualifying quarters of work not covered by Title II
of the Social Security Act, based on the sum of: quarters the
alien worked; quarters credited from the work of a parent of
the alien before the alien became 18 (including quarters
worked before the alien was born or adopted); and quarters
credited from the work of a spouse of an alien during their
marriage if they are still married or the spouse is deceased.
A spouse cannot get credit for quarters of coverage of a
spouse when the couple divorces before a determination of
eligibility is made. If a determination of eligibility has been
made based on the quarters of coverage of a spouse, and the
couple later divorces, the alien's eligibility continues until
the next recertification. At that time, eligibility is
determined without crediting the alien with the former
spouse's quarters of coverage. (Beginning January 1, 1997,
any quarter in which the alien received any Federal meanstested
benefits does not count as a qualifying quarter. A
parent's or spouse's quarter is not creditable if the parent or
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
30 PROPOSED REGULATIONS
spouse received any Federal means-tested benefits or
actually received food stamps in that quarter. If an alien
earns the 40th quarter of coverage before applying for food
stamps or any other Federal means-tested benefit in that
same quarter, all that quarter toward the 40 qualifying
quarters total.);
(B) lawfully in US on 8/22/96 and is now
under 18 years of age;
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 107 (31 Del.C. §107)
PUBLIC NOTICE
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 107, Delaware Health and Social Services (DHSS) /
Division of Social Services / Food Stamp Program is
proposing to amend its policies in the Division of Social
Services Manual (DSSM) as it relates to anticipating income
and reporting changes. These mandatory provisions will be
implemented on October 1, 2003.
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 Sharon L. Summers, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware 19720-0906 by July 31, 2003.
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.
Summary Of Proposed Changes
• DSSM 9038 - Requires verification of changes in
income when the change is greater than $50 in stead
of the current $25. Removes language about actual
utilities since DSS does not use actual utilities in
food stamps anymore.
• DSSM 9063.3 - Allows States to average the
income of households with fluctuating income
without the household opting to have its income
averaged. Clarifies that conversion of income is
not averaging of income.
• DSSM 9085 - Six-month reporting is now known
as simplified reporting. Changes the reporting
threshold of $25 per month to $50 per month for
regular change reporting households. Adds a
sentence about changes in the sources of income.
For reportable changes in income, allows the
change to be reported within 10 days of the date
when the household receives its first payment.
• DSSM 9085.2 - clarifies that action is to be taken
on a change that is anticipated to continue into the
month after the month the change is reported.
Citations:
• 7 CFR §§273.10 and 273.12
• Federal Register, Volume 68, Number 82, Food
Stamp Program: Anticipating Income and
Reporting Changes by FNS/USDA
DSSM 9038 Verification Subsequent to Initial
Certification
[273.2(f)(8)]
A. Recertification - Verify a change in income or actual
utility expenses if the source has changed or the amount has
changed by more than $25 $50. Previously unreported
medical expenses and total recurring medical expenses
which have changed by more than $25 shall also be verified
at recertification. Do not verify income if the source has not
changed and if the amount is unchanged or has changed by
$25 $50 or less unless the information is incomplete,
inaccurate or inconsistent. Do not verify total medical
expenses or actual utility expenses claimed by households
which are unchanged or have changed by $25 or less, unless
the information is incomplete, inaccurate or inconsistent.
Verify any changes in the legal obligation to pay child
support, the obligated amount, and the amount of actual
payments made to nonhousehold members for households
eligible for the child support deduction. Verify unchanged
child support payments only if questionable.
Verify newly obtained Social Security Numbers at
recertification according to procedures outlined in DSSM
9032.5.
Other information which has changed may be verified at
recertification. Do not verify unchanged information unless
the information is incomplete, inaccurate or inconsistent.
B. Changes - Changes reported during the certification
period are subject to the same verification procedures as
apply at initial certification, except that we shall not verify
changes in income if the source has not changed and if the
amount has changed by $25 $50 or less, unless the
information is incomplete, inaccurate or inconsistent. Do
not verify total medical expenses, or actual utility expenses
unless the information is incomplete, inaccurate or
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 31
inconsistent.
For individuals who are satisfying the ABAWD work
requirements by working, by combining work and
participation in a work program, or by participating in a
work or workfare program that is not operated or supervised
by the State, the individuals' work hours shall be verified.
9063.3 Income Averaging
[273.10(c)(3)]
Households, except destitute households and PA
households subject to a monthly reporting requirement, may
elect to have income averaged.
Do not average income for a destitute household since
averaging would result in assigning to the month of
application income from future periods which is not
available to the destitute household for its current food
needs.
To average income, use the household's anticipation of
income fluctuations over the certification periods. The
number of months used to arrive at the average income need
not be the same as the number of months in the certification
period. For example, if fluctuating income for the past 30
days and the month of application are known and, with
reasonable certainty, are representative of the income
fluctuations anticipated for the coming months, the income
from the two (2) known months may be averaged and
projected over a certification period of longer than two (2)
months.
Income may be averaged when the household has
fluctuating income. When averaging income, use the
household's anticipation of monthly income fluctuations
over the certification period. Averages are recalculated at
recertification and when changes in income are reported.
Conversion of income received weekly or biweekly
according to DSSM 9063.2 is not averaging income.
Households which, by contract or by self-employment,
derive their annual income in a period of time shorter than
one (1) year will have that income averaged over a 12-month
period, provided the income from the contract is not received
on an hourly or piecework basis. These households may
include school employees, share croppers, farmers and other
self-employed households. However, these provisions do
not apply to migrant or seasonal farmworkers. The
procedures for averaging self-employed income are
described in DSSM 9075. Contract income which is not the
household's annual income and is not paid on an hourly or
piecework basis shall be prorated over the period the income
is intended to cover.
For food stamp purposes, a contract employee is one
that has an agreement with an employer to work a certain
length of time or perform a specific job. It may be either a
written contract or an implied contract. Acceptable
verification would be a statement from the employer or a
written document, such as a copy of the contract or
agreement, that shows the terms of employment.
The following shows an example of contract and hourly
work:
A teacher's aid works 10 months of the year for
$9.16 per hour and 6 hours per day. She does not
sign a "contract" but it is implied that she will be
"rehired" for the following school year. She will be
considered a contract employee whose income
must be annualized.
An employee who is paid hourly is one that is paid
based on the number of hours he works when there is no
established work schedule such as a handyman who does
odd jobs around the school.
Earned and unearned educational income, after
allowable exclusions, shall be averaged over the period
which it is intended to cover. Income shall be counted either
in the month it is received, or in the month the household
anticipates receiving it or receiving the first installment
payment, although it is still prorated over the period it is
intended to cover.
9085 Reporting Changes
[273.12]
Certified food stamp households are required to report the
following changes in circumstances:
Six-Month Simplified Reporting Requirements
The following reporting requirements are for all
households except those households where all members are
elderly or disabled without earned income, homeless, or
migrant or seasonal farmworkers:
• 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
the household composition, residence and resulting
changes in shelter costs, acquisition of nonexcluded
licensed vehicles, when liquid resources
exceed $2000. and changes in the legal child
support obligation.
Additional reporting requirement for ABAWD
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
32 PROPOSED REGULATIONS
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 not eligible for
the six-month simplified reporting requirements above:
• Changes in the sources of or in the amount of gross
unearned income of more than $25 $50, 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;
• A change in the source of income, including
starting or stopping a job or changing jobs, if the
change in employment causes a change in income.
• 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 (for noncategorically
eligible households);
• When cash on hand, stocks, bonds, and money in a
bank account or savings institution reach or exceed
a total of $2,000 (for non-categorically eligible
households);
• 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.
For reportable changes of income, households must
report the change within 10 days of the date the household
receives its first payment.
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.
9085.2 DSS Responsibilities: Action on Changes
[273.12(c)]
Take prompt action on all changes to determine if the
changes affect the household's eligibility or allotment. Even
if there is no change in the allotment, document reported
changes in the case file, provide another change report form
to the household, notify the household of the effect of the
change, if any, on its benefits. Document the date of receipt
of the report form or the date a change is reported by phone
or in person. If a household reports a change in income
which is expected to continue for a least one month beyond
the month in which the change is reported, act on the change
according to DSSM 9085.3 and 9085.4. If DSS fails to take
action on a change within the time limits specified in DSSM
9085.3, restore the lost benefits.
PA households have the same reporting requirements as
any other food stamp household and shall use the change
report form. PA households who report changes to their
workers for PA purposes will be considered to have reported
the change for food stamp purposes as well.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 107 (31 Del.C. §107)
PUBLIC NOTICE
Transitional Medicaid 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 107, Delaware Health and Social Services (DHSS) /
Division of Social Services / Medicaid/Medical Assistance
Program is proposing to amend the policy of the Transitional
Medicaid Program in the Division of Social Services Manual
(DSSM).
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 Sharon L. Summers, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by July 31, 2003.
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. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 33
SUMMARY OF PROPOSED CHANGES - DSSM
15120.2 AND 15200
This rule amendment corrects language in the recently
revised regulations related to transitional coverage. The
revised regulations were originally adopted on May 10, 2003
in order to continue Medicaid coverage absent a TANF
waiver for families that lose coverage because of earnings.
15120.2 Financial Eligibility
TANF rules on income standards and methodologies
(disregards, exclusions, allocations) apply to Section 1931
Medicaid except as provided in this section.
For Section 1931 Medicaid, there are two income tests
to determine financial eligibility. The first test is a gross
income test and the second is a net income test. For the
gross income test, compare the family's gross income to
185% of the applicable standard of need. For the net income
test, compare the family's net income to the applicable
standard of need.
Financial eligibility for both applicant and recipient
families will be calculated using the 30 and 1/3 disregard if
applicable. This disregard allows the deduction of $30 plus
1/3 of the remaining earned income after the standard
allowance for work connected expenses is subtracted.
The $30 plus 1/3 disregard is applied to earned income
for four (4) consecutive months. If Medicaid under Section
1931 or employment ends before the fourth month, the
earner is eligible for the disregard for four (4) additional
months upon reapplication or re-employment.
When an earner's wages are so low ($90 or less in the
month) that the income is zero before any part of the $30
plus 1/3 disregard can be applied, that month does not count
as one of the four (4) consecutive months and the earner is
eligible for the disregard for four (4) additional months.
After the $30 plus 1/3 disregard has been applied for
four (4) consecutive months, the 1/3 disregard is removed
from the budget. The $30 disregard continues to be
deducted from earned income for eight (8) consecutive
months. The $30 disregard is not repeated if an individual
stops working or 1931 Medicaid ends before the completion
of the eight (8) consecutive months. If 1931 Medicaid ends
and the family reapplies, the $30 disregard from earned
income is continued until the end of the original eight (8)
consecutive months.
Unlike the $30 plus 1/3 disregard which is dependent
upon the family having sufficient earned income and being
1931 Medicaid recipients, the $30 disregard is for a specific
time period. This time period begins when the $30 plus 1/3
disregard ends and is not dependent upon the family having
earned income or 1931 Medicaid.
When an earner has received the $30 and 1/3 disregard
in four (4) consecutive months and the $30 deduction has
been available for eight (8) consecutive additional months,
neither disregard can be applied to earned income until the
individual has not received the 30 and 1/3 disregard
Medicaid under Section 1931 for twelve (12) consecutive
months.
All earned income is disregarded for the second and
third months of eligibility.
All earned income is disregarded for recipients for 12
months after employment causes ineligibility.
Any diversion assistance provided does not count as
income.
Resources are not counted for Medicaid under Section
1931.
15200 Transitional Medicaid
The Family Support Act of 1988, PL 100-485,
mandated that effective April 1, 1990, states provide health
care coverage known as Transitional Medical Assistance for
up to twelve months for families who become ineligible for
AFDC due to increased earnings, increased hours of
employment, or loss of earned income disregards.
The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA), P.L. 104-193,
repealed the AFDC program and replaced it with a program
of block grants to states forTemporary Assistance for Needy
Families (TANF). Delaware implemented its TANF
program, Delaware's A Better Chance Welfare Reform
Program (DABC), on March 10, 1997.
Prior to PRWORA, a family's eligibility for
Transitional Medicaid was linked to receipt of AFDC.
Under PRWORA, a family's eligibility for transitional
Medicaid is linked to receipt of Medicaid under Section
15120, "Low Income Families with Children under Section
1931".
The eligibility group described in "Low Income
Families with Children under Section 1931", will be referred
to as "receiving Medicaid under Section 1931" throughout
this section.
Delaware's welfare reform waiver, "Delaware's A
Better Chance Welfare Reform Program" (DABC) included
a modification to the length of the Transitional Medicaid
period. The DABC waiver extended Transitional Medicaid
benefits for up to 24 months. This waiver expired on
September 30, 2002. DSS will use the option under Section
1931(b)(2)(C) of the Social Security Act to disregard all
earned income for 12 months after employment causes
ineligibility for a family under Section 1931. (See DSSM
15120.2.)
Effective October 1, 2002, Transitional Medicaid
coverage extends for up to one year. The year is divided into
two periods of six months each. Families who establish
eligibility for Transitional Medicaid prior to October 1,
2002, may be eligible for up to 24 months of Transitional
Medicaid. These are families who establish eligibility for
Transitional Medicaid under the DABC waiver authority.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
34 PROPOSED REGULATIONS
Families who establish eligibility for Transitional Medicaid
on or after October 1, 2002, may be eligible for up to 12
months of Transitional Medicaid.
Families must meet the initial eligibility requirements
described in this section to receive the first six months of
coverage. Families can be eligible when their income
exceeds either 185% of the standard of need or the standard
of need.
To continue to receive Medicaid for the second six
months, the family's gross earned income less dependent
care costs must be at or below 185% FPL. Dependent care
costs are for the care of dependent children or incapacitated
persons living in the home. Family income will be budgeted
prospectively.
HUMAN RELATIONS COMMISSION
Statutory Authority: 6 Delaware Code,
Section 4506 (6 Del.C. §4506)
PUBLIC NOTICE
The Human Relations Commission in accordance with 6
Del.C. §4506 has proposed changes to Rule 10 and Rule 27
implemented under the Equal Accommodations Act. The
changes clarify that a party or the Division of Human
Relations can move to dismiss a complaint before a hearing
when the Commission lacks jurisdiction or the complaint
does not allege facts to state a claim under the statute. The
dismissal order can be appealed to court.
In addition, the proposed changes toll the time for an
appeal if there has been an application for reconsideration
after a panel hearing. Tolling the appeal time is consistent
with the rules of the courts and other administrative
agencies.
A public hearing will be held at 7:00 p.m. on August
14, 2003 in Room 204 of the MBNA Building, Delaware
State University, Rte.13, Dover, Delaware where members
of the public can offer comments. Anyone wishing to
receive a copy of the proposed rules and regulations may
obtain a copy from the Division of Human Relations at the
Carvel State Building, 820 North French St., 4th Floor,
Wilmington, DE 19802. Persons wishing to submit written
comments may forward these to the Commission at the
above address. The final date to receive written comments
will be at the public hearing.
The Commission will consider promulgating the
proposed regulations at its regularly scheduled meeting
following the public hearing.
EQUAL ACCOMMODATIONS REGULATIONS
OF THE
STATE HUMAN RELATIONS COMMISSION
Rule 10: Voluntary Termination and Dismissal
A. A case may be dismissed by the Complainant
without order of the Commission by filing a notice of
dismissal at any time before service of a response to the
complaint or by filing a stipulation of dismissal signed by all
parties who have appeared in the case. Unless otherwise
stated in the notice of dismissal or stipulation, the dismissal
is without prejudice, except that a notice of dismissal
operates as an adjudication upon the merits when filed by a
Complainant who has once dismissed a case before the
Commission based on or including the same claim. A
Complainant who dismisses a case pursuant to this
paragraph may refile a complaint within ninety (90) days
after the occurrence of the alleged discriminatory public
accommodation practice. A case shall be considered to have
been closed or voluntarily terminated upon withdrawal of
complaint by Complainant with or without prejudice prior to
answer by the Respondent. Such withdrawal shall be in
writing. However, after answer by Respondent, a complaint
may be withdrawn with or without prejudice only with the
consent of the Respondent or with approval by the
Chairperson or designee to preserve the public interest.
B. After a Respondent has filed a response to the
complaint, a case shall not be dismissed at the
Complainant's request except upon order of the Commission
and upon such terms and conditions as the Commission
deems proper. Unless otherwise specified in the order, a
dismissal under this paragraph is without prejudice. A case
may be dismissed for lack of activity in the case for more
than 1 year. Application shall be made in writing by the
Division staff to a Panel or if no Panel has been appointed,
then to the Division Director or Chairperson, stating the
reason for the proposed closing.
C. A case may be dismissed for failure of Complainant
to cooperate upon application of the Division staff to the
Panel or if no Panel has been appointed, then to the Division
Director or Chairperson. Failure to co-operate includes, but
is not limited to, failure to keep the Division informed of
Complainant's current address.
D. A case may be dismissed upon written application
to the Panel by the Respondent or the Division Director
when
1. the Commission does not have jurisdiction to
determine the case; or
2. the facts alleged do not state a violation of the
law.
E. An application for dismissal by the Respondent
shall show proof of service of the application upon the
Complainant. Complainant shall have 10 days after being
served to respond to the Respondent and Commission. An
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
PROPOSED REGULATIONS 35
application for dismissal by the Division shall show proof of
service on all parties and all parties shall have 10 days after
being served to respond to the Commission.
F. A Panel will convene to consider the application for
dismissal without an evidentiary hearing or oral argument.
The Panel will consider only the facts in the pleadings. The
facts alleged by the claimant will be considered as true for
the purpose of the dismissal proceeding.
G. All notices of case dismissals shall be served on all
parties and shall include a statement of the right to appeal, to
have the case reopened for good cause shown to the Panel, or
if no Panel has been appointed, then to the Division Director
or Chairperson.
Rule 27: Reconsideration
Any Party, within five(5) business days after receipt of
the Final Order, may apply to the Panel for reconsideration,
briefly and distinctly stating the grounds therefor. Within
five (5) business days after service of such a motion, an
opposing Party may serve and file a brief answer to each
ground asserted in the motion. Any motion or answer filed
under this Rule shall be submitted with five (5) copies to the
office of the Division of Human Relations where the
complaint was filed. The Panel shall promptly convene to
consider a motion for reconsideration. The filing of such a
motion shall not extend the time for judicial review as set
forth in 6 Delaware Code, Section 4511. A copy of the
Panel's decision on the motion for reconsideration shall be
mailed by certified mail, return receipt requested, delivered
by hand, or delivered by regular first class mail to the last
address which each Party has provided to the Division of
Human Relations for the Party or if the Party is represent to
the Party's attorney.
Any party within five (5) business days after mailing of
the Final order may apply to the Panel for reconsideration by
briefly and distinctly stating the grounds. T he application
shall show that it was served on the opposing party. Within
five (5) business days after service of such application, the
opposing party may serve and file a brief answer to each
ground asserted. The Panel shall promptly convene to
consider such application for reconsideration. The filing of
such application shall extend the time for judicial review
under 6 Del. C. §4511.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
36 FINAL REGULATIONS
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
BOARD OF CHIROPRACTIC
24 DE Admin. Code 700
Statutory Authority: 24 Delaware Code,
Section 706(a)(1)) (24 Del.C. 706(a)(1))
ORDER
Summary Of The Evidence
There were no written or verbal comments concerning
the proposed Rule and Regulation.
Findings Of Fact
The Board of Chiropractic ("Board") makes the
following findings of fact pursuant to 29 Del.C. §10118(b):
1. Pursuant to 24 Del.C. §706(a), the Board proposed
to revise its existing Rules and Regulations, in order to set
forth provisions and procedures concerning the retention,
procurement and disposal of patient records, including when
a chiropractor is on inactive status, leaves Delaware, or
terminates his or her practice in Delaware, or when a patient
changes care to a new chiropractor.
2. Pursuant to 29 Del.C. §10115, notice was given to
the public that a hearing would be held on February 20, 2003
at 8:30 a.m. in the Second Floor Conference Room of the
Cannon Building, 861 Silver Lake Blvd., Dover, Delaware
to consider the proposed revisions. Notice of the public
hearing was published in the Delaware Register of
Regulations dated January 1, 2003 and two Delaware
newspapers of general circulation.
3. The notice invited the public to submit written
comments regarding the proposed revisions.
4. A hearing was held on February 20, 2003, at which
a quorum of the Board was present to hear public comment,
deliberate and render a decision.
5. No written comments were received prior to and at
the February 20, 2003 hearing and no person appeared at the
hearing concerning the proposed revisions.
6. The Board reviewed and discussed the proposed
revisions to Rule 5.0. Rule 5.0 is changed in order to be
consistent with other State law, and establishes the
requirements and procedures for retention, patientprocurement
and disposal of patient records. The proposed
revisions also set forth the requirements and procedures
concerning patient records as to when a chiropractor is on
inactive status, leaves Delaware, or terminates his or her
practice in Delaware, and when a patient changes from the
care of one chiropractor to a new chiropractor. It further
provides that any patient records may be permanently
disposed in a manner that ensures confidentiality of the
records if: the records have not been procured within 7 years
after a chiropractor terminates practice or leaves the State, or
the patient has not treated within 7 years from the date of the
last treatment. The Board finds the proposed revisions serve
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 37
to clarify and update 24 Del.C. Ch. 7 and its Rules and
Regulations.
Text And Citation
The text of the Rules and Regulations hereby
promulgated are as it appeared in the Delaware Register of
Regulations, Vol. 6, Issue 7 (January 1, 2003), which is
attached hereto and incorporated herein as Exhibit A with
the revisions noted.
Decision And Order
NOW THEREFORE, by unanimous vote of the Board,
it is the decision and order of the Board that the Rules and
Regulations are adopted in the text as it appeared in the
Delaware Register of Regulations, attached as Exhibit A
with the revisions noted. A copy of the revised Rules and
Regulations is attached hereto and incorporated herein as
Exhibit B. The effective date of this Order and the Rules and
Regulations is ten (10) days after the date the Order is
published in its final form in the Delaware Register of
Regulations pursuant to 29 Del.C. §10118(g).
IT IS SO ORDERED this 15th day of May, 2003.
State Of Delaware, Board Of Chiropractic:
Michael Kelman, D.C., President
W. Monroe Hearne, Secretary
Bryan Errico, D.C., Professional Member
Gary Morgan, D.C., Professional Member
Tamara Blossic, D.C., Professional Member1
Rebecca Gates, Public Member
Attest:
Judy Letterman, Administrative Assistant to the Board
1.0 Chiropractic Defined; Limitations of Chiropractic
License
2.0 Officers; Meetings; Quorum
3.0 Certification
4.0 Continuing Education
5.0 Issuance of License; Renewal; Inactive Status;
Reinstatements.
6.0 Grounds for Discipline
7.0 License to Practice
8.0 Voluntary Treatment Option (See 4 DE Reg. 1940
1. Dr. Blossic and Ms. Gates, members of the Board,
were not present at the February 20, 2003 public hearing and
therefore, their signatures are not included in this decision
and order.
(6/1/01)
1.0 Chiropractic Defined; Limitations of Chiropractic
License
1.1 An adjunctive procedure not otherwise prohibited
by Chapter 7 which aids and or assists the chiropractor in
providing chiropractic care and includes by way of example
and is not limited to:
• Acupuncture Procedures
• Physiological Therapeutics
• Diet and Nutritional Programs
• Rehabilitation/Exercise Programs
(See 4 DE Reg. 1940 (6/1/01)
2.0 Officers; Meetings; Quorum
The Board will hold elections for the offices of
President and Secretary at the regularly scheduled meeting in
October of each year or as soon thereafter as practical.
Vacancies occurring in an office shall be filled for the
remainder of the term in the month following the vacancy or
as soon thereafter as is practical.
3.0 Certification
Certification in any nationally recognized specialty for a
licensee requires a minimum of one hundred (100) or more
hours of certified training beyond and in addition to any
courses or training received toward a degree of Doctor of
Chiropractic. Certification in any nationally recognized
chiropractic specialty or technique requires that the licensee
shall have completed all requirements for recognition as a
practitioner of such chiropractic specialty or technique by
the nationally recognized certification body.
4.0 Continuing Education.
4.1 Continuing Education for New Licensees:
4.1.1 At the time of the initial license renewal,
some individuals will have been licensed for less than two
(2) years. Therefore, for these individuals only, the
continuing education hours will be pro-rated as follows:
License Granted During First Year:Credit Hours
Required:
July 1 - December 31 24 hours
January 1 - June 30 18 hours
License Granted During Second Year: Credit
Hours
Required:
July 1 - December 31 12 hours
January 1 - June 30 6 hours
4.2 Continuing Education for Licensees other than new
licensees:
4.2.1 Unless otherwise excused by the Board for
good cause such as illness, extended absence from the
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
38 FINAL REGULATIONS
country, or unique personal hardship which is not the result
of professional negligence or inadvertence, all Chiropractors
seeking renewal more than two (2) years from initial
licensure or reinstatement of a lapsed license must provide to
the Board adequate proof of the satisfactory completion of
twenty four (24) hours of Board approved continuing
education within the immediately preceding two (2) year
period.
4.2.2 Proof of continuing education shall be
received at the Division of Professional Regulation, Dover,
Delaware, no later than April 30th of the reporting year and
shall be received every 2 years after such date. Continuing
education completed before April 30th of the reporting year
shall not be carried over to the next renewal period. The
Board has the right to conduct an audit of the proof of
continuing education submitted by licensees.
(See 4 DE Reg. 1940 (6/1/01)
5.0 Issuance of License; Renewal; Inactive Status;
Reinstatements; Retention of Patient Records (24 Del. C.
§ 709)
5.1 The Biennial licenses granted by the Board shall
automatically terminate on June 30th of each even numbered
year or on such other date as is specified by the Division of
Professional Regulation. It is the responsibility of the
licensee to file a renewal application with the Board. The
failure of the Board to notify a licensee of his/her expiration
date does not in any way relieve the licensee of the
requirement of filing a renewal application with the Board.
A licensee who fails to renew a license before the expiration
date may renew on a late basis for a period not to exceed one
(1) year.
5.2 Inactive Status and Termination of Practice. Any
licensee who seeks to be placed on inactive status or
terminates his or her practice who is terminating his or her
practice in this State or is leaving this State and is not
transferring his or her records to another chiropractor shall
notify the Board in writing and notify all patients treated
within the last three (3) years by publication in a newspaper
of general circulation throughout the State of Delaware and
offer to make the patients records available to the patient or
his or her duly authorized representative. Except in an
emergency situation where as much notice as is reasonably
possible shall be given, the notice by publication shall be
made at least ninety (90) days prior to termination of the
practice or leaving the State and must be published at least 3
times over this ninety (90) day period and must explain how
a patient can procure his or her patient records. except in an
emergency situation where as much notice as is reasonably
possible shall be given. All patients who have not requested
their records thirty (30) days prior to the termination of the
licensee's practice or the licensee leaving the State from
such publication of notice shall, within thirty days of the
closing of the business, be notified by first class mail by the
licensee to permit patients to procure their records. Any
patient records that have not been procured within 7 years
after the licensee terminates his or her practice or leaves the
State may be permanently disposed of in a manner that
ensures confidentiality of the records.
5.3 Retention of Patient Records. Patient records must
be retained by the Chiropractor or arrangements made for the
maintenance and retention of patient records for seven (7)
years from the date of the last treatment.
5.4 Whenever a patient changes from the care of one
Chiropractor to another Chiropractor and upon the request of
either the new Chiropractor or the patient the previous
Chiropractor (a) may charge for the reasonable expenses of
copying the patient's records and upon receiving payment for
such expenses, shall transfer the patient's records to the new
Chiropractor, or (b) if there is no copying charge, shall
transfer the records of the patient to the new Chiropractor,
within a reasonable time frame. Alternatively, if the patient
and new Chiropractor agree, the Chiropractor may forward
to the new Chiropractor a summary of the patient's records in
lieu of the entire record at no charge to the patient. If a
patient changes care from one Chiropractor to another
Chiropractor, and fails to notify the previous Chiropractor or
leaves the care of the previous Chiropractor for a period of 7
years from the date of the last treatment and fails to notify
the previous Chiropractor, or fails to request the transfer of
records to the new Chiropractor, then the previous
Chiropractor shall maintain said records for a period of 7
years from the date of last treatment, after which time the
records may be permanently disposed of in a manner that
ensures confidentiality of the records.
5.5 This rule shall not apply to a Chiropractor who has
seen or treated a patient on referral from a Chiropractor and
who has provided a record of the diagnosis or treatment to
another chiropractor, hospital or agency which has provided
treatment for the patient.
5.6 A Chiropractor or the personal representative of the
estate of a Chiropractor who disposes of patient records in
accordance with the provisions of this rule is not liable for
any direct or indirect loss suffered as a result of the disposal
of a patient's records.
(See 4 DE Reg. 1940 (6/1/01)
6.0 Grounds for Discipline
6.1 Unprofessional Conduct in Advertising. Any
Licensee who advertises or holds out to the public that he or
she is a specialist in any specific chiropractic or adjunctive
procedure without having a valid current certification as
having special training and/or certification in such procedure
or procedures from a recognized certification body is guilty
of unprofessional conduct.
6.2 Examples of Unprofessional Conduct in
Advertising and Promotional Practices. The following
advertising and promotional practices are deemed to be
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 39
misleading, false, deceptive, dishonorable and/or unethical
and shall constitute unprofessional conduct by a licensee:
6.2.1 The use of testimonials without written
permission of that doctor's patient.
6.2.2 Offering free or discounted examinations
unless all charges associated with such examinations,
including all x-ray fees and charges, are conspicuously set
out in writing at the time of and in conjunction with such
offer and unless such examinations are offered regardless of
the availability of insurance coverage of any recommended
subsequent treatment.
6.2.3 The use of unjustified or exaggerated
claims, promises or statements which guarantee or strongly
imply cure or successful treatment or are otherwise false,
fraudulent, deceptive, or misleading.
6.2.4 Willful failure to identify licensee as a
Doctor of Chiropractic, Chiropractor or Chiropractic
Physician.
6.3 Unprofessional conduct with Patient, Employees,
or Co-workers. Sexual misconduct in violation of a statute
of the State of Delaware or any State or Commonwealth
where such conduct takes place, involving a licensee and a
patient, employee or co-worker shall be deemed to be
unprofessional conduct.
(See 4 DE Reg. 1940 (6/1/01)
(See 6 DE Reg. 270 (9/1/02)
7.0 License to Practice
A Chiropractor licensed elsewhere but not licensed in
the State of Delaware may practice chiropractic within the
State of Delaware only in consultation with a duly Delaware
licensed Chiropractor for not more than ten (10)
consultations in any twelve (12) month period, which
consultations shall be limited to examination,
recommendation or testimony in litigation.
8.0 Voluntary Treatment Option
Any member of the public or a licensee may make a
written report, signed by the complainant, of chemical
dependency or impairment affecting any person regulated by
the Board pursuant to 29 Del.C. §8807(n).
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
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
40 FINAL REGULATIONS
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.
(See 4 DE Reg. 1940 (6/1/01)
(See 5 DE Reg. 1959 (5/1/02)
DIVISION OF PROFESSIONAL REGULATION
BOARD OF MASSAGE & BODYWORK
24 DE Admin. Code 5300
Statutory Authority: 24 Del.Code,
Section 5306(1) (24 Del.C. §5306(1))
ORDER
Pursuant to 29 Del.C. §10113(b) and 24 Del.C.
§5306(1), the Delaware Board of Massage and Bodywork
("the Board") hereby issues this Order adopting proposed
Rule amendments to Rules 6.3.1, 6.3.2, 6.3.2.1, and 6.3.2.6.
Following notice and a public hearing held on May 1, 2003,
the Board makes the following findings and conclusions:
Summary Of Evidence and Information Submitted
1. The Board posted public notice of the proposed rule
amendments in the April 1, 2003 Register of Regulations
and in two newspapers of general circulation. The proposed
rule amendments propose to revise Rule 6.3 of the current
Rules as follows: 1)amend Rule 6.3.1 to clarify that for each
biennial licensing period, the Board requires that eighteen
(18) of twenty-four (24) credits required of massage
therapists be received in supervised in-class, hands-on study
of the "practice of massage and bodywork," and that nine (9)
of the required twelve (12) credits required for massage
technicians must be received in supervised in-class, hands-
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 41
on study of the "practice of massage and bodywork";
2)amend Rule 6.3.2 to clarify that, for each biennial
licensing period, massage therapists may complete up to six
(6) of the required twenty-four (24) hours in course areas
listed in Rules 6.3.2.1-6.3.2.6 and that massage technicians
may complete up to three (3) of the required twelve (12)
hours in the course areas listed in Rules 6.3.2.1-6.3.2.6; and
3) amend Rules 6.3.2.1 and 6.3.2.6 to clarify the courses that
are acceptable for continuing education credit requirements
of Rule 6.3.2.
2. The Board received no written public comments
prior to the public hearing. The Board received no public
comments at the public hearing on May 1, 2003.
Findings of Fact and Conclusions
3 The public was given notice and an opportunity to
provide the Board with comments in writing and at a public
hearing. No comments were received from the public.
4. The proposed rule changes to Rule 6.3 would
clarify the Board's continuing education requirements for
massage therapists and massage technicians. The proposed
rule changes to Rule 6.3.2.1 and 6.3.2.6 would clarify the
acceptable courses for continuing education credit.
5. The Board concludes that the proposed rule
changes are a necessary improvement for clarification of the
continuing education requirements. The Board concludes
that the proposed rule changes will allow for better
compliance with and understanding of the Board's
continuing education requirements by massage therapists
and massage technicians. The Board concludes that
adoption of the proposed rules is consistent with the Board's
objectives under 24 Del.C. §5301. The Board will adopt the
rules as proposed and the adopted rules will replace any
former version of said rules.
6. The Board's rules as adopted will provide as
follows.
7. The Board will submit this Order to the Register of
Regulations for publication in the July 1, 2003 issue and the
proposed rules will be effective July 11, 2003.
IT IS SO ORDERED this 5th day of June, 2003.
Daniel P. Stokes, President, Professional Member
Allan Angel, Vice-President, Public Member
Patricia Beetschen, Secretary, Professional Member
Vivian Cebrick, Public Member
Phyllis Mikell, Professional Member
Suzie Stehle, Professional Member
Clayton Yocum, Public Member
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.
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.
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.
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. For each
biennial licensing period, massage therapists must complete
at least eighteen of the required twenty-four hours of
continuing education hours in supervised in-class hands-on
study of the "practice of massage and bodywork" as defined
in Rule 1.3. For each biennial licensing period, massage
technicians must complete at least nine of the required
twelve hours of continuing education hours in supervised inclass
hands-on study of the "practice of massage and
bodywork" as defined in Rule 1.3.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
42 FINAL REGULATIONS
6.3.2 For each biennial licensing period,
massage therapists may complete (but are not required to
complete) up to six hours of the required twenty-four hours
of continuing education hours in any combination of the
areas and methods listed in Rules 6.3.2.1 through 6.3.2.5. In
each biennial licensing period, massage technicians may
complete (but are not required to complete) up to three hours
of the required twelve hours of continuing education hours in
any combination of the areas and methods listed in Rules
6.3.2.1 through 6.3.2.5. 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
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 such as are
listed in Rule 1.4, which are modalities other than in the
practice of massage and bodywork massage/bodywork
therapy
6.3.2.2 Personal growth and selfimprovement
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.
6.3.2.6 Courses in anatomy or physiology
* PLEASE NOTE: AS THE REST OF THE SECTIONS WERE
NOT AMENDED THEY ARE NOT BEING PUBLISHED. A
COMPLETE SET OF THE BOARD OF MASSAGE &
BODYWORK REGULATIONS ARE AVAILABLE AT:
http://www.state.de.us/research/profreg/Frame.htm
DEPARTMENT OF AGRICULTURE
HARNESS RACING COMMISSION
Statutory Authority: 3 Delaware Code,
Section 10027 (3 Del.C. §10027)
ORDER
Pursuant to 29 Del. C. §10113(b) and 3 Del. C. §10005,
the Delaware Harness Racing Commission ("the
Commission") hereby issues this Order adopting proposed
Rules 7.3.9 and 7.6.6.3. Following notice and a public
hearing held on April 29, 2003, the Commission makes the
following findings and conclusions:
Summary Of Evidence And Information Submitted
1. The Commission posted public notice of the
proposed rule amendment in the March 1, 2003 Register of
Regulations and in the Delaware Capital Review and the
Delaware State News. The proposal contained a proposed
amendments to Rule 7.3.9 to provide for a more detailed
procedure for the cancellation of races due to weather
conditions. The proposed amendment to Rule 7.6.6.3 would
delete the phrase "after the recall point is passed" from the
Rule.
2. The Commission received no written public
comments prior to the public hearing. The Commission
received no comments at the public hearing on April 29,
2003.
Findings Of Fact And Conclusions
3. The public was given notice and an opportunity to
provide the Commission with comments in writing and at a
public hearing. No comments were received from the
public.
4. The proposed rule change to Rule 7.3.9 would
clarify the existing rule on the procedure for cancellation of
racing in the event of adverse weather conditions. The
Commission finds that the proposed rule is an improvement
over the existing procedure and is in the best interests of the
track, the horsemen, and the public. The proposed rule
amendment to Rule 7.6.6.3 would simply delete the phrase
"after the recall point is passed" and is necessary since there
no longer is a recall point.
5. The Commission concludes that the adoption of the
rule amendments in their proposed form is in the best
interests of the public and consistent with the Commission's
duties under 3 Del. C. §10005. The Commission will adopt
both rules as proposed. The Commission's Order will be
effective ten days after publication in the Register of
Regulations.
IT IS SO ORDERED this 29th day of May, 2003
Beth Steele, Chair
Mary Ann Lambertson, Commissioner
Robert L. Everett, Commissioner
Kenneth Williamson, Commissioner
7.0 Rules of the Race
7.1 Declarations and Drawing
7.1.1 Declarations
7.1.1.1 Unless otherwise specified in the
conditions, the declaration time shall be as follows:
7.1.1.1.1 Extended pari-mutuel
meetings, 9:00 a.m.
7.1.1.1.2 All other meetings, 10:00
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 43
a.m.
7.1.1.2 The time when declarations close will
be considered to be local time at the track where the race is
being contested.
7.1.1.3 No horse shall be permitted to start in
more than one race on any one racing day. Races decided by
more than one heat are considered a single race.
7.1.1.4 The association shall provide a locked
box with an aperture through which declarations shall be
deposited.
7.1.1.5 The Presiding Judge shall be in charge
of the declaration box.
7.1.1.6 Just prior to opening of the box at
extended pari-mutuel meetings where futurities, stakes, early
closing or late closing events are on the program, the
Presiding Judge shall check with the racing secretary to
ascertain if any declarations by mail, telegraph, facsimile
machine or otherwise, are in the office and not deposited in
the entry box, and shall see that they are declared and drawn
in the proper event. At other meetings, the Presiding Judge
shall ascertain if any such declarations have been received
by the speed superintendent or racing secretary of the fair,
and shall see that they are properly declared and drawn.
7.1.2 Drawing
7.1.2.1 The entry box shall be opened at the
advertised time by the Presiding Judge, who shall ensure that
at least one horseman or an official representative of the
horsemen is present. No owner or agent for a horse with a
declaration in the entry box shall be denied the privilege of
being present. Under the supervision of the Presiding Judge,
all entries shall be listed, the eligibility verified, preference
ascertained, starters selected and post positions drawn. If it
is necessary to reopen any race, public announcement shall
be made at least twice and the box reopened to a definite
time.
7.1.2.2 Subject to Commission approval, at
non-extended meetings in the event of the absence or
incapacity of the Presiding Judge, the functions enumerated
above may be performed by one or more associate judges, or
by a person designated by the Presiding Judge, for whose
acts and conduct Presiding Judge shall be wholly
responsible. If a substitution is made as herein provided, the
name and address of the associate judge(s) or person so
substituting shall be entered in the Judges' Book.
At extended meetings in the event of
the absence or incapacity of the Presiding Judge, the
functions enumerated above may be performed by one or
more associate judges who shall have been designated by the
Presiding Judge, prior to the start of the meeting, in the form
of a written notice to the Commission and to the association
conducting the meeting. A record shall be kept in the
Judges' Book showing the name of the individual who
performed such functions on each day of the meeting.
7.1.2.3 In races of a duration of more than
one dash or heat at pari-mutuel meetings, the judges may
draw post positions from the stand for succeeding dashes or
heats.
7.1.2.4 Declarations by mail, telegraph,
facsimile machine or telephone actually received and
evidence of which is deposited in the box before the time
specified to declare in, shall be drawn in the same manner as
the others. Such drawings shall be final. Mail, telegraph,
facsimile machine and telephone declarations must state the
name and address of the owner or lessee; the name, color,
sex, sire and dam of the horse; the driver's name and racing
colors; the date and place of last start; a current summary,
including the number of starts, firsts, seconds, thirds,
earnings and best winning time for the current year; and the
event or events in which the horse is to be entered.
7.1.2.5 Failure to declare as required shall be
considered a withdrawal from the event.
7.1.2.6 After declaration to start has been
made no horse shall be withdrawn except by permission of
the judges. A fine, not to exceed $500, or suspension may be
imposed for withdrawing a horse without permission, the
penalty to apply to both the horse and the party who violates
the regulation.
7.1.2.7 Where the person making the
declaration fails to honor it and there is no opportunity for a
hearing by the judges, this penalty may be imposed by the
commission representative.
7.1.2.8 Where a horse properly declared is
omitted from the race by error of the association, the race
shall be redrawn; provided, however, that the error is
discovered prior to the publication of the official program.
7.1.2.9 In the event there are two tiers of
horses, the withdrawing of a horse that has drawn or earned a
position in the front tier shall not affect the position of the
horses that have drawn or earned positions in the second tier,
except as provided for in handicap claiming races. Whenever
a horse is drawn from any tier, horses on the outside move in
to fill up the vacancy. When there is only one trailer, it may
start from any position in the second tier. When there is
more than one trailer, they must start from inside any horse
with a higher post position.
7.1.3 Qualifying Races
7.1.3.1 Qualifying races and starting gate
schooling shall be held according to the demand as
determined by the Presiding Judge or State Steward.
7.1.3.2 Qualifying standards shall be set at
each track by the racing secretary and the judges. These may
vary at different times of the year to accommodate weather
and the class of horse available. Standards for trotters will
be two seconds slower than pacers.
7.1.3.3 At all extended pari-mutuel meetings
declarations for overnight events shall be governed by the
following:
7.1.3.3.1 Before racing at a chosen
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
44 FINAL REGULATIONS
gait, a horse must go a qualifying race at that gait under the
supervision of a licensed judge and acquire at least one
charted line by a licensed charter. In order to provide
complete and accurate chart information on time and beaten
lengths, a standard photo finish shall be in use.
7.1.3.3.2 Any horse that fails to race
within thirty (30) days of its last start must go a qualifying
race as set forth in a) above. However, at any race meeting
this period can be extended up to sixty (60) days upon
receiving approval of the Commission. The time period
allowed shall be calculated from the date of the last race to
and including the date of declaration. Horses entered and in
to go in a race or races which are canceled due to no fault of
their own, shall be considered to have raced in that race, and
no start shall be counted for date preference purposes.
7.1.3.3.3 When a horse has raced at a
charted meeting and then gone to meetings where the races
are not charted the information from the uncharted lines may
be summarized including each start and consolidated in
favor of charted lines to include a charted line within the last
thirty (30) days before the horse is permitted to race. The
consolidated line shall carry date, place, time, driver, finish,
track condition and distance.
7.1.3.3.4 The judges may permit a
horse to qualify by means of a timed workout consistent with
the time of the races in which he will compete in the event
adequate competition is not available for a qualifying race.
7.1.3.3.5 When, for the purpose of
qualifying the driver, a horse is declared in to race in a
qualifying race, its performance shall be applicable to the
horse's eligibility to race and the chart line shall be notated to
indicate driver qualifying.
7.1.3.3.6 If a horse takes a win race
record in either a qualifying race or a matinee race, such
record must be prefaced with the letter "Q" wherever it
appears, except in a case where, immediately prior to or
following the race, the horse taking the record has been
submitted to an approved urine, saliva or blood test. It will
be the responsibility of the Presiding Judge to report the test
on the Judges' Sheet.
7.1.3.4 Any horse regularly wearing hopples
shall not be permitted to be declared to race without them
and any horse regularly racing without hopples shall not be
permitted to wear hopples in a race without first having
qualified with this equipment change. In addition to the
foregoing, any horse regularly wearing hopples and which is
not on a qualifying list or Stewards' List, is allowed one start
without hopples in a qualifying race; and this single
performance shall not affect its eligibility to race with
hopples in a subsequent event to which it is declared.
7.1.3.5 In their discretion the judges may
require a horse to qualify for any reason; provided, however,
that a horse making a break in each of two consecutive races
may not be required to qualify if the breaks were solely
equipment breaks and/or were caused solely by interference
and/or track conditions.
7.1.3.6 A horse must qualify if:
7.1.3.6.1 it does not finish for reasons
other than interference or broken equipment.
7.1.3.7 A charted line containing only a break
or breaks caused by interference or an equipment break shall
be considered a satisfactory charted line.
7.1.3.8 The judges shall use the interference
break mark only when they have reason to believe that the
horse was interfered with by another horse or the equipment
of another horse.
7.1.3.9 If qualifying races are postponed or
canceled, an announcement shall be made to the participants
as soon as the decision is made.
7.1.4 Coupled Entries
When the starters in a race include two or more
horses owned by the same person, or trained in the same
stable or by the same management, they shall be coupled as
an "entry", and a wager on one horse in the entry shall be a
wager on all horses in the "entry"; provided, however, that
when a trainer enters two or more horses in a stake, early
closing, futurity, free-for-all or other special event under
bona fide separate ownership, such horses may, at the
request of the association, made through the State Steward,
and with the approval of the Commission, be permitted to
race as separate entries. If the race is split in two or more
divisions, horses in an "entry" shall be seeded in separate
divisions insofar as possible, but the divisions in which they
compete and their post positions shall be drawn by lots. The
above provisions shall also apply to elimination heats. The
person making the declaration of a horse that qualifies as a
coupled entry with another horse entered in the same event
shall be responsible to designate the word "entry" on the
declaration blank. The Presiding Judge shall be responsible
for coupling horses. In addition to the foregoing, horses
separately owned or trained may be coupled as an entry
where it is necessary to do so to protect the public interest for
the purpose of pari-mutuel wagering only; provided,
however, that where this is done entries may not be rejected.
7.1.5 Also Eligibles
Not more than two horses may be drawn as
also eligibles for a race and their positions shall be drawn
along with the starters in the race. In the event one or more
horses are excused by the judges, the also eligible horse or
horses shall race and take the post position drawn by the
horse that it replaces, except in handicap races. In handicap
races the also eligible horses shall take the place of the horse
that it replaces in the event that the handicap is the same. In
the event the handicap is different, the also eligible horse
shall take the position on the outside of horses with a similar
handicap. No horse may be added to a race as an also
eligible unless the horse was drawn as such at the time
declarations closed. No horse may be barred from a race to
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which it is otherwise eligible by reason of its preference due
to the fact that it has been drawn as an also eligible. A horse
moved into the race from the also eligible list cannot be
drawn except by permission of the judges, but the owner or
trainer of such a horse shall be notified that the horse is to
race and it shall be posted at the racing secretary's office. All
horses on the also eligible list and not moved in to race by
Scratch Time on the day of the race shall be released.
7.1.6 Preference Dates
Preference dates shall be given to horses in all
overnight events at extended pari-mutuel tracks in
accordance with the following:
7.1.6.1 The date of the horse's last previous
start in a purse race is its preference date with the following
exceptions:
7.1.6.1.1 The preference date on a
horse that has drawn to race and has been scratched is the
date of the race from which scratched.
7.1.6.1.2 When a horse is racing for
the first time after February 1 in the current year, the date of
the first declaration into a purse race shall be considered its
preference date.
7.1.6.1.3 Wherever horses have equal
preference in a race, the actual preference of said horses in
relation to one another shall be determined by backdating, up
to two starts, the horse having raced closest to the draw
having the least preference. If no preference is determined,
preference will be determined by lot.
7.1.6.1.4 When an overnight race has
been re-opened because it did not fill, all eligible horses
declared into the race prior to the re-opening shall receive
preference over other horses subsequently declared,
irrespective of the actual preference dates, excluding horses
already in to go.
7.1.6.2 This rule relative to preference is not
applicable at any meeting at which an agricultural fair is in
progress. All horses granted stalls and eligible must be
given an opportunity to compete at these meetings.
7.2 Timing and Records
7.2.1 Timing
7.2.1.1 The time of each heat or dash shall be
accurately taken by two timers or an approved electric
timing device, in which case there shall be one timer, and
placed in the record in minutes, seconds and fifths of
seconds, and upon the decision of each heat the time thereof
shall be publicly announced or admitted to the record. When
the timers fail to act, no time shall be announced or recorded.
7.2.1.2 The time shall be taken from the first
horse leaving the point from which the distance of the race is
measured until the winner reaches the wire.
7.2.1.3 The leading horse shall be timed and
its time only shall be announced. No horse shall obtain a win
race record by reason of the disqualification of another horse
unless the horse's actual race time can be determined by
photo finish or electronic timing.
7.2.1.4 In the case of a dead heat, the time
shall constitute a record for the horses making the dead heat
and both shall be considered winners.
7.2.2 Records
7.2.2.1 In order that performances thereon
may be recognized or published as official, every association
shall have filed with the Commission the certificate of a duly
licensed civil engineer or land surveyor that the track has
been measured from wire to wire three feet out from the
inside hub rail or other fixed marker and certifying exactly
the result of such measurement. Each track shall be
measured and re-certified in the event of any changes or
relocation of the hub rail or other fixed marker.
7.2.2.2 A record will be the fastest time made
by a horse in a heat or dash which it won, or in a
performance against time.
7.2.2.3 No time record shall be recognized as
a world record if obtained on a track without an inside rail or
other fixed marker.
7.2.2.4 In any case of alleged error in the
record, announcement or publication of the time made by a
horse, the time so questioned shall not be changed to favor
said horse or owner, except upon the sworn statement of the
judges and timers who officiated in the race.
7.2.2.5 If a horse takes a win-race record in a
qualifying race or schooling race, such record must be
prefaced with the letter "Q" wherever it appears, except in a
case where the horse was subjected to the collection of an
test sample. The Presiding Judge shall note on the judges'
official race reports each qualifying race from which test
samples were collected.
7.2.2.6 For horses bred in North America and
subsequently exported, foreign earnings shall be converted
to U.S. dollars and credited to the horse's official records. A
winning performance at a mile or greater distance, expressed
at a mile rate, shall receive recognition as the horse's record.
7.2.2.7 Any person found guilty of fraudulent
misrepresentation of time or the alteration of the record
thereof, in any race, shall be fined, suspended, expelled or a
combination thereof and time declared not a record.
7.3 Postponement and Cancellation
7.3.1 In case of unfavorable weather or other
unavoidable cause, the association upon notifying the
Commission shall postpone or cancel races in accordance
with the following rules.
7.3.2 Added money events shall be postponed to
a definite hour on a scheduled race date when favorable
conditions prevail.
7.3.3 An early closing event or a late closing
event that cannot be raced during the scheduled meeting
shall be declared off and the total of nomination, sustaining
and starting payments divided equally among the owners of
eligibles in proportion to the number of horses declared to
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46 FINAL REGULATIONS
start.
7.3.4 An early closing event or late closing
event that has been started, but remains unfinished on the
last day of the scheduled meeting shall be declared ended
and the full purse divided according to the summary.
7.3.5 Stakes and futurities should be raced
where advertised and the meeting may be extended to
accomplish this. Any stake or futurity that has been started,
but which remains unfinished on the last day of the
scheduled meeting shall be declared ended and the full purse
divided according to the summary, except where the
association elects to extend the meeting to complete the race.
Horses that are scratched after a heat and before the race is
declared finished shall not participate in purse distributions
for subsequent heats in the event the race is called off and
declared finished.
7.3.6 Unless otherwise provided in the
conditions, in order to transfer stakes and futurities to
another meeting, unanimous consent must be obtained from
the association and all those having eligibles in the event.
7.3.7 At extended meetings, overnight events
may be postponed and rescheduled within two days, or may
be canceled if circumstances or weather conditions warrant.
Postponed overnight events not raced within two days shall
then be canceled.
7.3.8 At non-extended meetings, overnight
events shall be canceled, unless the association is willing to
add the postponed races to the advertised program for
subsequent days of the meeting. At the option of the
association, any postponed races may be contested in single
one-mile dashes. Where races are postponed under this rule,
the association shall have the privilege of selecting the order
in which events will be raced in any combination program.
7.3.9 If the track conditions are questionable for
the warming up or racing of horses, the State Steward and
Presiding Judges shall convenecall a meeting consisting of a
committee including himself/herself, an Agent of the track
with the representative of the drivers and trainers and a
rRepresentative of the Horsemen management. The Agent of
the track will notify the Track Superintendent to attempt to
correct any problem with the racing surface as soon as
possible. Once the Track Superintendent has addressed the
problem, The Horsemen's Representative will physically
review the areas in question. If all are in agreement that the
problem has been corrected, racing will proceed. If the
Representative of the Horsemen is not satisfied, the Track
Superintendent will be given a final opportunity to rectify
the problem.
If after the second attempt to rectify the
problem, the Horsemen's Representative is still not satisfied,
there will be a vote of the Drivers and Trainers of horses
participating in that night's program to determine if racing
will be conducted. A secret vote will be taken of those
participants and will be conducted and monitored by the
Judges. The Judges will count the ballots and inform Track
Management of the outcome. If required by the State
Stewards and judges and the representative of the drivers and
trainers shall conduct a vote of the drivers and trainers of
horses participating in that program of racing to determine
whether racing should be conducted. If a tally the vote of the
drivers and trainers determines that more than 50 25 percent
or less vote to race against racing, the card shall be canceled.
If more than 50 25 percent and less than 75 percent vote to
race, trainers will be allowed to withdraw horses without
penalty. If more than 75 percent or more vote to race, the
regular rules of withdrawal and scratching of horses will
apply. The foregoing does not preclude prevent race track
management from canceling racing the races due to track
and or weather conditions without consultation with the
State Steward, Presiding Judges and the Horsemen's
Representative upon notification of the Commission or its
designee.
7.3.10 If qualifying races are postponed or
canceled, an announcement shall be made to the participants
as soon as the decision is made.
7.3.11 Where a race is postponed pursuant to any
of the foregoing provisions only those horses originally
declared in to the postponed event shall to be eligible to race.
Where a race is postponed and moved to another location,
horses previously declared may withdraw without penalty.
7.3.12 In the event the State Steward/Judges
declare a "No Contest", the designated purse for that contest
shall be divided equally among those horses that were
eligible to participate in that contest. The declaration date
for those horses credited with earnings in this manner shall
be the scheduled date of the "No Contest" race.
7.4 Horses Permitted to Race
7.4.1 A horse shall be eligible to be declared in
to race provided the following conditions have been met:
7.4.1.1 the eligibility fee, which shall become
due and payable when a horse makes its first start in any type
of race in a calendar year, has been paid to the United States
Trotting Association, or a current eligibility certificate has
been granted for the horse by the United States Trotting
Association or by the Canadian Trotting Association.
7.4.1.2 the horse has been registered in the
current ownership with the Canadian Standardbred Horse
Society or in the United States Trotting Association
Register;
7.4.1.3 if leased, a copy of the lease is on file
with, and is acceptable to the United States Trotting
Association or Canadian Trotting Association, as
appropriate. The horse must race in the name of the lessee;
7.4.1.4 for overnight races, the horse has
qualified at an extended meeting in accordance with the rules
prior to the time of closing of declarations in accordance
with the qualifying standards of the track presenting the race.
7.4.1.5 for added money events, the horse has
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FINAL REGULATIONS 47
qualified at an extended meeting in accordance with the rules
prior to the time of closing of declarations.
7.4.1.6 not more than 30 days prior to the
time of closing of declarations, the horse was credited with a
satisfactory charted past performance line obtained in a
purse, qualifying or schooling race conducted at a charted
meeting; provided, however, that with the permission of the
Presiding Judge, a satisfactory charted past performance
within 60 days prior to the time of closing of declarations
may be used;
7.4.1.7 the horse is at least two years of age to
race at any meeting but not older than 14 years of age;
7.4.1.8 the horse has not been denerved by
any method above its pastern. The decision at any given time
whether the horse has been denerved shall be the State
veterinarian's.
7.4.1.9 if a mare has been spayed, the United
States Trotting Association or Canadian Trotting
Association, as appropriate, has been notified in writing by
the owner, trainer or veterinarian;
7.4.1.10 the horse does not have a trachea
tube or a hole in its throat for a trachea tube;
7.4.1.11 the horse has unimpaired vision
in at least one eye; and
7.4.1.12 the horse has been lip tattooed or
freeze-branded in accordance with the constitution and
by-laws and regulations of the United States Trotting
Association or Canadian Standardbred Horse Society.
7.4.2 Any participant who declares, or causes to
be declared, an ineligible horse to start shall be guilty of a
violation of the rules and subject to disciplinary action by the
judges. If after declarations close, and prior to the race, the
judges become aware that an ineligible horse has been
declared, they shall immediately scratch the horse and
starting fees, if applicable, shall be forfeited.
7.4.3 If the ownership of a horse changes, such
horse may start under the new ownership not more than one
time without reasonable evidence being given to the judges
that the registration certificate has been forwarded to the
United States Trotting Association.
7.4.4 Any participant skipping or omitting
transfers of ownership of any horse shall be guilty of a
violation.
7.4.5 For the purposes of these rules, the term
eligibility certificate shall refer to a printed document or its
electronically produced equivalent.
7.4.6 Horses not under lease must race in the
name of the bona fide owner.
7.5 Equipment
7.5.1 Any owner or trainer who wishes to
change any equipment or hopples on a horse from one race
to another shall apply to the judges for permission to do so,
and no change shall be made without such permission. The
judges shall assure themselves of the necessity for any
change of equipment or hopples before granting permission.
7.5.2 No horse will be permitted in a race to
wear any type of equipment that covers, protrudes, or
extends beyond its nose or that in any way could interfere
with the true placing of the horse.
7.5.3 It shall be the responsibility of the owner
and trainer to provide every sulky used in a race with
unicolored or colorless wheel discs on the inside and outside
of each wheel of a type approved by the Commission. In his
discretion, the Presiding Judge may order the use of mud
guards.
7.6 Racing Rules
7.6.1 Under Supervision of Starter
7.6.1.1 Horses shall be under supervision of
the starter from the time they arrive on the track until the
start of the race.
7.6.1.2 All horses shall parade from the
paddock to the starting post, and no driver shall dismount
without the permission of the starter. Attendants may not
care for the horses during the parade except by permission of
the starter.
7.6.1.3 After entering the track not more than
ten (10) minutes shall be consumed in the parade of the
horses to the post except in cases of unavoidable delay.
7.6.1.4 Horses awaiting post time may not be
held on the backstretch in excess of five (5) minutes, except
when delayed by an emergency.
7.6.2 Pre-Race Accidents
When, before a race starts:
7.6.2.1 A horse is a runaway or is otherwise
involved in an accident, such horse shall be examined by the
racing veterinarian and if the horse is not ordered scratched
by the veterinarian, the judges may permit the horse to
compete and have this decision announced.
7.6.2.2 A driver is unseated and appears to
have been injured, the horse that was being driven by that
driver may compete with a substitute driver.
7.6.2.3 If a horse is scratched in error and
cannot be added back into the pari-mutuel system, the horse
may race for purse only. The judges shall ensure that the race
announcer informs the public that the horse will be racing
without pari-mutuel wagering.
7.6.3 Fair Start
The starter shall give such orders and take such
measures that do not conflict with the rules of racing, as are
necessary to secure a fair start.
7.6.4 Starter's Duties
7.6.4.1 The starter shall be in the starting gate
ten (10) minutes before the post time of the race.
7.6.4.2 The starter shall have control over the
horses and authority to assess fines and/or suspend drivers
for any violation of the rules from the formation of the
parade until the word "go" is given.
7.6.4.3The starter may assist in placing the
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48 FINAL REGULATIONS
horses when requested by the judges to do so.
7.6.4.4 The starter shall notify the judges and
the drivers in writing of penalties imposed by him/her.
7.6.5 Starting
7.6.5.1 The starter shall have control of the
formation of the parade until giving the word "go".
7.6.5.2 After warming up scores, the starter
shall notify the drivers to come to the starting gate.
7.6.5.3 The horses shall be brought to the
starting gate as near one-quarter of a mile before the start as
the track will permit.
7.6.5.4 Allowing sufficient time so that the
speed of the gate can be increased gradually, the following
minimum speeds will be maintained:
7.6.5.4.1 For the first one-eighth of a
mile, not less than 11 miles per hour.
7.6.5.4.2 For the next one-sixteenth of
a mile, not less than 18 miles per hour.
7.6.5.4.3 From that point to the
starting point, the speed will be gradually increased to
maximum speed.
7.6.5.4.4 On mile tracks horses will be
brought to the starting gate at the head of the stretch and the
relative speeds mentioned in a), b) and c) above will be
maintained.
7.6.5.5 The starting point will be a point
marked at a designated spot not less than 200 feet from the
first turn. The starter shall give the word "go" at the starting
point.
7.6.5.6 When a speed has been reached
in the course of a start there shall be no decrease except in
the case of a recall.
7.6.6 Recall Rules
7.6.6.1 In case of a recall, a light plainly
visible to the drivers shall be flashed and a recall sounded,
but the starting gate shall proceed out of the path of the
horses. In the case of a recall, whenever possible, the starter
shall leave the wings of the gate extended and gradually slow
the speed of the gate to assist in stopping the field of horses.
In an emergency, however, the starter shall use his/her
discretion to close the wings of the gate.
7.6.6.2 There shall be no recall after the word
"go" has been give unless there is a mechanical failure of the
starting gate.
7.6.6.3 The starter shall attempt to dispatch
all horses away in position and on gait but there shall be no
recall for a breaking horse after the recall point is passed.
7.6.6.4 In the event a horse causes two
recalls, it may be an automatic ruling of the judges that the
offending horse be scratched.
7.6.6.5 The starter may sound a recall for the
following reasons:
7.6.6.5.1A horse scores ahead of the gate;
7.6.6.5.2There is interference;
7.6.6.6.3A horse has broken equipment;
7.6.6.6.4A horse falls before the word
"go" is given; or
7.6.6.6.5A mechanical failure of the
starting gate.
7.6.6.7 A fine and/or suspension may be
applied to any driver for:
7.6.6.7.1 Delaying the start;
7.6.6.7.2 Failure to obey the starter's
instructions;
7.6.6.7.3 Rushing ahead of the inside
or outside wing of the gate;
7.6.6.7.4 Coming to the starting gate
out of position;
7.6.6.7.5 Crossing over before
reaching the starting point;
7.6.6.7.6 Interference with another
driver during the start; or
7.6.6.7.7 Failure to come up into
position.
7.6.7 Starting Gate
7.6.7.1 No persons shall be allowed to ride in
the starting gate except the starter and the driver or operator
and a patrol judge, unless permission has been granted by the
State Steward.
7.6.7.2 Use of the mechanical loudspeaker for
any purpose other than to give instructions to the drivers is
prohibited. The volume shall be no higher than necessary to
carry the voice of the starter to the drivers.
7.6.7.3 The arms of all starting gates shall be
provided with a screen or shield in front of the position for
each horse, and such arms shall be perpendicular to the rail.
7.6.7.4 The official starter must ensure that
the starting gate is in good working order prior to the
beginning of each race program.
7.6.7.5 The official starter and starting gate
driver shall operate the starting gate in a manner consistent
with the safe conduct of the race, the safety of the race
participants and the safety of the patrons.
7.6.8 Two-Tiered Races
7.6.8.1 In the event there are two tiers of
horses, the withdrawing of a horse that has drawn or earned a
position in the front tier shall not affect the positions of
horses that have drawn or entered positions in the second
tier.
7.6.8.2 Whenever a horse is drawn from any
tier, horses on the outside move in to fill the vacancy. Where
a horse has drawn a post position in the second tier, the
driver of such horse may elect to score out behind any horse
in the front tier so long as it does not interfere with another
trailing horse or deprive another trailing horse of a drawn
position.
7.6.8.3 When there is only one trailer, it may
start from any position in the second tier. When there is more
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 49
than one trailer, they must start from inside any horse with a
higher post position.
7.6.9 Starting Without a Gate
7.6.9.1 When horses are started without a
gate the starter shall have control of the horses from the
formation of the parade until giving the word "go". The
starter shall be located at the wire or other point of start of
the race at which point as nearly as possible the word "go"
shall be given. No driver shall cause unnecessary delay after
the horses are called. After two preliminary warming-up
scores, the starter shall notify the drivers to form in parade.
7.6.9.2 The driver of any horse refusing or
failing to follow the instructions of the starter as to the
parade or scoring ahead of the pole horse may be set down
for the heat in which the offense occurs, or for such other
period as the starter shall determine, and may be fined.
Whenever a driver is taken down, the substitute shall be
permitted to score the horse once. A horse delaying the race
may be started regardless of its position or gait and there
shall not be a recall because of a bad acting horse. If the
word "go" is not given, all the horses in the race shall
immediately turn on signal, and jog back to their parade
positions for a fresh start. There shall be no recall after the
starting word is given.
7.6.10 Horse Deemed a Starter
Horses shall be deemed to have started when
the word "go" is given by the starter and all horses must go
the course except in the case of an accident in which it is the
opinion of the judges that it is impossible to go the course.
7.6.11 Unmanageable/Bad Acting Horses
7.6.11.1 If, in the opinion(s) of the judges and/
or the starter, a horse is unmanageable or liable to cause
accidents or injury to any other horse or to any driver, it may
be sent to the barn. When this action is taken, the starter will
notify the judges who will in turn notify the public and order
any refunds as may be required in Rule 10 of these rules.
7.6.11.2 The starter may place a bad acting
horse on the outside at his/her discretion. Such action may
be taken only where there is time for the starter to notify the
judges who will in turn notify the public prior to any
pari-mutuel wagering on the race. If pari-mutuel wagering
has already begun on the race, the horse must be scratched as
stipulated in subdivision 1 above.
7.6.12 Post Positions, Heat Racing
7.6.12.1 The horse winning a heat shall take
the inside position in the succeeding heat, unless otherwise
specified in the published conditions of the race, and all
others shall take their positions in the order they were placed
in the prior heat.
7.6.12.2 When two or more horses dead
heat, their positions shall be determined by lot.
7.6.13 Conduct of the Race
7.6.13.1 A driver shall not commit any of the
following acts which are considered violations of driving
rules:
7.6.13.1.1 Change course or position, or
swerve in or out, or bear in or out during any part of the race
in such a manner as to compel a horse to shorten its stride or
cause another driver to change course, take his or her horse
back, or pull his/her horse out of its stride.
7.6.13.1.2 Impede the progress of
another horse or cause it to break from its gait.
7.6.13.1.3 Cross over too sharply in
front of another horse or in front of the field.
7.6.13.1.4 Crowd another horse by
'putting a wheel under it.'
7.6.13.1.5 Allow another horse to pass
needlessly on the inside, or commit any other act that helps
another horse to improve its position.
7.6.13.1.6 Carry another horse out.
7.6.13.1.7 Take up or slow up in front
of other horses so as to cause confusion or interference
among the trailing horses.
7.6.13.1.8 Maintain an outside position
without making the necessary effort to improve his/her
overall position.
7.6.13.1.9 Strike or hook wheels with
another sulky.
7.6.13.1.10 Lay off a normal pace and
leave a hole when it is well within the horse's capacity to
keep the hole closed.
7.6.13.1.11 Drive in a careless or
reckless manner.
7.6.13.1.12 Fail to set, maintain or
properly contest a pace comparable to the class in which he/
she is racing considering the horse's ability, track conditions,
weather and circumstances confronted in the race.
7.6.13.1.13 Riding 'half-in' or 'half-out'.
7.6.13.1.14 Kicking a horse.
7.6.13.2 A complaint by a driver of any foul,
violation of the rules or other misconduct during a race shall
be made immediately after the race to which it relates, unless
the driver is prevented from doing so by an accident or injury
or other reasonable excuse. A driver desiring to enter a
claim of foul, or other complaint of violation of the rules,
shall make this known to the starter before dismounting and
shall proceed immediately to the paddock telephone to
communicate immediately with the judges. Any driver who
is involved in an objection or inquiry shall proceed
immediately to the paddock telephone to communicate with
the judges. The judges shall not cause the official sign to be
posted until the matter has been dealt with.
7.6.13.3 If a violation is committed by a person
driving a horse coupled as an entry the judges may set both
horses back if, in their opinion, the violation may have
affected the finish of the race, otherwise penalties may be
applied individually.
7.6.13.4 In the case of interference, collision,
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
50 FINAL REGULATIONS
or violation of any rules, the offending horse may be placed
back one or more positions in that heat or dash, and in the
event of such collisions, interference or violation preventing
any horse from finishing the heat or dash, the offending
horse may be disqualified from receiving any winnings and
the driver may be fined or suspended. If a horse is set back, it
must be placed behind the horse with which it interfered. If
an offending horse has interfered with a horse involved in a
dead heat and the offending horse is set back, it must be
placed behind the horses in the dead heat.
7.6.13.5 If the judges believe that a horse is, or
has been driven with design to prevent it winning a race or
races, they shall consider it a violation by the driver.
7.6.13.6 If the judges believe that a horse has
been driven in an inconsistent manner, they shall consider it
a violation.
7.6.13.7 If the judges believe that a horse has
been driven in an unsatisfactory manner due to lack of effort
or a horse has been driven in an unsatisfactory manner for
any reason, they shall consider it a violation punishable by a
fine and/or suspension.
7.6.13.8 If a horse is suspected to have choked
or bled during a race, the driver and/or trainer of that horse is
required to report this to the judges immediately after the
race.
7.6.13.9 If, in the opinion of the judges, a
driver is for any reason unfit or incompetent to drive, or is
reckless in his/her conduct and endangers the safety of
horses or other drivers in a race, he/she shall be removed and
another driver substituted at any time and the offending
driver may be fined, suspended or expelled.
7.6.13.10 If for any cause other than being
interfered with, or broken equipment, a horse fails to finish
after starting a race, that horse shall be ruled out of any
subsequent heat of the same event. If it is alleged that a
horse failed to finish a race because of broken equipment,
this fact must be reported to the paddock judge who shall
make an examination to verify the allegation and report the
findings to the judges.
7.6.13.11 A driver must be mounted in the
sulky at all times during the race or the horse shall be placed
as a non-finisher.
7.6.13.12 Shouting or other improper
conduct in a race is forbidden.
7.6.13.13 Drivers shall keep both feet in the
stirrups during the post parade and from the time the horses
are brought to the starting gate until the race has been
completed. Drivers shall be permitted to remove a foot from
the stirrups during the course of the race solely for the
purpose of pulling ear plugs and once same have been pulled
the foot must be placed back into the stirrup. Drivers who
violate this rule may be subject to a fine and/or suspension.
7.6.13.14 Drivers will be allowed to use
whips not to exceed three feet, nine inches in length plus a
snapper not to exceed six inches in length. Drivers shall
keep a line in each hand from the start of the race until the
quarter pole. From the quarter pole to the 7/8th pole, a driver
may only use the whip once for a maximum of three strokes.
Once the lead horse is at the 7/8th pole, these restrictions do
not apply.
7.6.13.15 The use of any goading device, or
chain, or spur, or mechanical or electrical device other than a
whip as allowed in the rules, upon any horse, shall constitute
a violation.
7.6.13.16 The possession of any
mechanical or electrical goading device on the grounds of an
association shall constitute a violation.
7.6.13.17 The judges shall have the
authority to disallow the use of any equipment or harness
that they feel is unsafe or not in the best interests of racing.
7.6.13.18 Brutal or excessive or
indiscriminate use of a whip, or striking a horse with the butt
end of a whip, or striking a wheel disc of a sulky with a
whip, shall be a violation. At extended pari-mutuel meetings,
under the supervision of the judges, there may be a
mandatory visual inspection of each horse following each
race for evidence of excessive or brutal use of the whip. At
all other meetings, the judges shall have the authority to
order and/or conduct such visual inspections at their
discretion.
7.6.13.19 Whipping a horse by using the
whip below the level of the shafts or the seat of the sulky or
between the legs of the horse shall be a violation.
7.6.13.20 When a horse breaks from its
gait, it shall be considered a violation on the part of the
driver for:
7.6.13.20.1 Failure to take the horse to
the outside of other horses where clearance exists.
7.6.13.20.2 Failure to properly attempt to
pull the horse to its gait.
7.6.13.20.3 Failure to lose ground while
on a break.
7.6.13.20.4 If no violation has been
committed, the horse shall not be set back unless a
contending horse on his/her gait is lapped on the hind quarter
of the breaking horse at the finish. The judges may set any
horse back one or more places if in their judgment, any of
the above violations have been committed, and the driver
may be penalized.
7.6.13.20.5 Any horse making a break
which causes interference to other horses may be placed
behind all offended horses. If there has been no failure on
the part of the driver of the breaking horse in complying with
Rule 7.6.13.20, no fine or suspension shall be imposed on
the driver as a consequence.
7.6.13.21 If, in the opinion of the judges, a
driver allows a horse to break for the purpose of losing a
race, he or she shall be in violation of the rules.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 51
7.6.13.22 It shall be the duty of one of the
judges to call out every break made and have them duly
recorded in judges official race reports.
7.6.13.23The horse whose nose reaches the
wire first is the winner. If there is a dead heat for first, both
horses shall be considered winners. In races having more
than one heat or dash, where two horses are tied in the
summary, the winner of the longer dash or heat shall be
entitled to the trophy. Where the dashes or heats are of the
same distance and the horses are tied in the summary, the
winner of the faster dash or heat shall be entitled to the
trophy. Where the dashes or heats are of the same time, both
horses shall be considered winners and the entitlement of the
trophy will be decided by lot.
7.6.13.24 The wire or finish line is a real
line established with the aid of a surveyor's transit, or an
imaginary line running from the center of the judges' stand to
a point immediately across and at right angles to the track.
7.6.13.25 If, during the preliminary scores
or during a race a driver is unseated in such a manner that he
or she falls to the ground, the State Steward or judges may
direct the driver to report to the infirmary or to the
emergency department of the nearest hospital for
examination and receive clearance to continue with driving
assignments on that day of racing.
7.6.13.26 If a horse is to warm up it must
go its last warm-up on the same racing strip as it will
compete on unless excused by the judges.
7.6.14 Harness Race Track Without a Hubrail
7.6.14.1 If at a racetrack which does not have a
continuous solid inside hub rail, a horse or part of the horse's
sulky leaves the course by running over or going inside the
pylons or other demarcation which constitutes the inside
limits of the course, the offending horse may be placed one
or more positions where, in the opinion of the judges, the
action gave the horse an unfair advantage over other horses
in the race, or the action helped the horse improve its
position in the race. Drivers may be fined or suspended for
permitting a horse's sulky to run over or go inside the pylons
or other demarcation which constitutes the inside limits of
the course. In addition, when an act of interference causes a
horse or part of the horse's sulky to cross the inside limits of
the course, and the horse is placed by the judges, the
offending horse shall be placed behind the horse with which
it interfered.
7.6.14.2 In the event a horse or part of a
horse's sulky leaves the course for any reason, it shall be the
driver's responsibility to take all reasonable steps to safely
reenter the race course as soon as possible.
7.6.15 Extended Homestretch
7.6.15.1 With approval of the Commission, a
track may extend the width of its homestretch up to 10 feet
inward in relation to the width of the rest of the racetrack.
7.6.15.2 In the event the home stretch is
expanded pursuant to 7.6.15.1 above, the following shall
apply:
7.6.15.2.1 When entering or while
going through the homestretch for the first time in a race, no
horse shall use the expanded inside lane in an attempt to pass
other horses or improve its position. Any horse, which does
so shall be disqualified and placed last in the order of finish.
7.6.15.2.2 the lead horse in the
homestretch shall maintain as straight a course as possible
while allowing trailing horses full access to the extended
inside lane. If, in the opinion of the judges, the lead horse
changes course in the homestretch in an attempt to prevent a
trailing horse from passing, said horse shall be placed
accordingly.
7.6.15.2.3 Horses using the expanded
inside lane during the homestretch drive for the finish of the
race, must first have complete clearance of the pylons
marking the inside boundary of the racecourse. Any horse or
sulky running over one or more of the pylons or going inside
the pylons while attempting to use the expanded inside lane,
may be disqualified or placed back one or more positions.
7.6.15.2.4 A horse may only be driven
into the expanded homestretch lane for the purpose of
passing another horse and may not be driven into the
expanded homestretch lane for the purpose of blocking a
trailing horse. If, in the opinion of the judges, a horse is
driven into the expanded homestretch lane for the purpose of
blocking a trailing horse, the driver of the blocking horse
may be fined and/or suspended and the horse may be placed
accordingly.
See 1 DE Reg. 923 (1/1/98)
See 2 DE Reg. 684 (10/01/98)
See 2 DE Reg. 1764 (4/1/99)
See 3 DE Reg. 432 (9/1/99)
See 3 DE Reg 1520 (5/1/00)
See 4 DE Reg 336 (8/1/00)
See 5 DE Reg. 832 (10/1/01)
DEPARTMENT OF EDUCATION
14 DE Admin. Code 101
Statutory Authority: 14 Delaware Code,
Section 122(d) (14 Del.C. §122(d))
Regulatory Implementing Order
101 Delaware Student Testing Program
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks the consent of the
State Board of Education to amend regulation 101 Delaware
Student Testing Program. The amendment to 2.0 Levels of
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
52 FINAL REGULATIONS
Performance adds the statement "Beginning with the 2006
assessments, there shall be the same five levels of
performance for students in grades 4, 6, 7 and 9 in reading,
mathematics and writing". The amendments to the last
sentence of 2.1 through 2.5 simply remove the reference to
the standard setting process. The amendment to 4.1.1
clarifies the reasons for assigning an Individual
Improvement Plan to a student. These changes reflect
changes made to state and federal statutes.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on April, 21
2003, in the form hereto attached as Exhibit A. The State
Board of Education recommended adding some clarifying
language to 2.0 and removing wording from 2.4 to make it
compatible with 2.3 and 2.5. These changes were made to
the regulation.
II. Findings of Facts
The Secretary finds that it is appropriate to amend this
regulation to conform to changes in state and federal
statutes.
III. Decision to Amend the Regulation
For the foregoing reasons, the Secretary concludes that
it is appropriate to amend the regulation. Therefore,
pursuant to 14 Del.C. §122, the regulation attached hereto as
Exhibit "B" is hereby amended. Pursuant to the provision of
14 Del.C. §122(e), the regulation hereby amended shall be in
effect for a period of five years from the effective date of this
order as set forth in SectionV. below.
IV. Text and Citation
The text of the regulation amended hereby shall be in
the form attached hereto as Exhibit "B", and said regulation
shall be cited as 14 DE Admin. Code § 101 in the
Regulations of the Department of Education.
V. Effective Date of Order
The actions hereinabove referred to were taken by the
Secretary pursuant to 14 Del. C. §122 on June 19, 2003. The
effective date of this Order shall be ten (10) days from the
date this Order is published in the Delaware Register of
Regulations.
IT IS SO ORDERED the 19th day of June 2003.
Department of Education
Valerie A. Woodruff, Secretary of Education
Approved this 19th day of June, 2003
State Board of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
101 Delaware Student Testing Program
1.0 Definition: The Delaware Student Testing Program
(DSTP) shall include the assessments of all students in
grades K-10 in the areas of reading, writing and mathematics
and the assessments of all students in grades 4, 6, 8, and 11
in the areas of science and social studies. The DSTP shall
also include the participation of Delaware students in the
National Assessment of Educational Progress (NAEP) as
determined by the Department of Education. All districts
and charter schools shall participate in all components of the
DSTP including field test administrations.
1.1 All students in said grades shall be tested except
that students with disabilities and students with limited
English proficiency shall be tested according to the
Department of Education's Guidelines for the Inclusion of
Students with Disabilities and Students with Limited English
Proficiency, as the same, may from time to time be amended
hereafter.
1.2 The Department of Education shall determine the
dates upon which the DSTP will be administered, and will
advise the school districts and charter schools of those dates.
2.0 Levels of Performance: There shall be five levels of
student performance relative to the State Content Standards
on the assessments administered to students in grades 3, 5, 8
and 10 in reading, mathematics and writing and to students
in grades 4, 6, 8 and 11 in social studies and science. [In
reading, writing and mathematics at grades 3, 5, 8 and 10
and science and social studies at grades 4, 6, 8 and 11 the
cut points for Exceeds the Standard and Meets the
Standard shall be determined by the Department of
Education with the consent of the State Board of
Education, using advice from a standard setting body.
The standard setting body shall utilize a proven method
for setting standards on test instruments that utilizes
student work in making the recommendation.]
Beginning with the 2006 assessments, there shall be the
same five levels of performance for students in grades[2,] 4,
6, 7 and 9 in reading, mathematics and writing. Said levels
are defined and shall be determined as follows:
2.1 Distinguished Performance (Level 5): A student's
performance in the tested domain is deemed exceptional.
Students in this category show mastery of the Delaware
Content Standards beyond what is expected of students
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 53
performing at the top of the grade level. Student
performance in this range is often exemplified by responses
that indicate a willingness to go beyond the task, and could
be classified as "exemplary." The cut points for
Distinguished Performance shall be determined by the
Department of Education, with the consent of the State
Board of Education, using test data and the results from the
Standard Setting process.
2.2 Exceeds the Performance Standard (Level 4): A
student's performance in the tested domain goes well beyond
the fundamental skills and knowledge required for students
to Meet the Performance Standard. Students in this category
show mastery of the Delaware Content Standards beyond
what is expected at the grade level. Student performance in
this range is often exemplified by work that is of the quality
to which all students should aspire, and could be classified as
"very good." The cut points for Exceeds the Performance
Standard shall be determined by the Department of
Education, with the consent of the State Board of Education ,
using advice from a standard setting body. The standard
setting body shall utilize a proven method for setting
standards on test instruments that utilizes student work in
making the recommendation.
2.3 Meets the Performance Standard (Level 3): A
student's performance in the tested domain indicates an
understanding of the fundamental skills and knowledge
articulated in the Delaware Content Standards. Students in
this category show mastery of the Delaware Content
Standards at grade level. Student performance in this range
can be classified as "good." The cut points for Meets the
Performance Standard shall be determined by the
Department of Education, with the consent of the State
Board of Education, using advice from a standard setting
body. The standard setting body shall utilize a proven
method for setting standards on test instruments that utilizes
student work in making the recommendation.
2.4 Below the Performance Standard (Level 2): A
student's performance in the tested domain shows a partial or
incomplete understanding of the fundamental skills and
knowledge articulated in the Delaware Content Standards.
Students who are Below the Performance Standard may
require additional instruction in order to succeed in further
academic pursuits, and can be classified as academically
"deficient." The cut points for Below the Performance
Standard shall be determined by the Department of
Education, with the consent of the State Board of Education,
[using test data and the results from the Standard Setting
process].
2.5 Well Below the Performance Standard (Level 1): A
student's performance in the tested domain shows an
incomplete and a clearly unsatisfactory understanding of the
fundamental skills and knowledge articulated in the
Delaware Content Standards. Students who are Well Below
the Performance Standard have demonstrated broad
deficiencies in terms of the standards indicating that they are
poorly prepared to succeed in further academic pursuits and
can be classified as "very deficient." The cut points for Well
Below the Performance Standard shall be determined by the
Department of Education, with the consent of the State
Board of Education, using test data and the results from the
Standard Setting process.
3.0 Other Indicators of Student Performance
3.1 Local school districts and charter schools may
consider other indicators of student performance relative to
the state content standards pursuant to 14 Del.C. §153(b)
when determining the placement of students who score at
Level 1 or Level II on a mandated retake of a portion of the
DSTP. The only other indicators of student performance that
may be considered by a local school district or charter school
are: student performance on district administered tests
pursuant to 14 Del.C. §153(e)(1); student performance on
end-of-course assessments; student classroom work products
and classroom grades supported by evidence of student work
that demonstrates a student's performance pursuant to 14
Del.C. §153(a).
3.2 Any local school district or charter school planning
to use other indicators of student performance shall submit
the proposed indicators to the Department of Education by
September 1st of each year.
3.2.1 Any such submission must include a
demonstration of how an indicator of student performance
aligns with and measures state content standards and the
level of performance required to demonstrate performance
equivalent to meeting state content standards.
3.2.2 Any proposed indicators of student
performance must be approved by the Department of
Education following consultation with the Student
Assessment and Accountability Committee and the State
Board of Education.
3.3 An academic review committee composed of
educators in the student's local school district or charter
school may then determine if a student has demonstrated
proficient performance relative to the state content standards
using evidence from the other indicators of student
performance as approved by the Department of Education.
3.3.1 The academic review committee shall be
composed of two classroom teachers from the student's
tested grade, one classroom teacher from the grade to which
the student may be promoted, one guidance counselor or
other student support staff member and two school building
administrators.
3.3.2 The supervisor of curriculum or
instruction for the school district or charter school or his/ her
designee shall chair the committee.
3.3.3 Placement of students with disabilities
who are eligible for special education and related services is
determined by the student's IEP team.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
54 FINAL REGULATIONS
4.0 Individual Improvement Plan (IIP)
4.1 The following students are required to have an
Individual Improvement Plan: Students who score below
Level 3 Meets the Standard, on the reading portion of the 3rd,
5th or 8th grade Delaware Student Testing Program or the
mathematics portion of the 8th grade Delaware Student
Testing Program shall have an Individual Improvement Plan
prepared by school personnel and signed by the teacher(s),
principal or designee and a parent or legal guardian of the
student.
4.1.1 Students assessed on the DSTP in grades
K, 1, 2, 4, 6, 7, and 9 who are not progressing satisfactorily
toward the standards or who score at Level 1 or Level 2 in
reading shall have an Individual Improvement Plan prepared
by school personnel and signed by the teacher(s), principal
or designee and a parent or legal guardian of the student.
Students assessed on the DSTP in grades 6, 7, and 9 who are
not progressing satisfactorily toward the standards or who
score at Level 1 or Level 2 in mathematics shall have an
Individual Improvement Plan prepared by school personnel
and signed by the teacher(s), principal or designee and a
parent or legal guardian of the student.
4.2 The Individual Improvement Plan shall be on a
form adopted by the student's school district or charter
school. The IIP shall be placed in a student's cumulative file
and shall be updated based on the results of further
assessments. Such assessments may include further DSTP
results as well as local assessments, classroom observations
or inventories. For students with an Individualized
Education Program (IEP), the IEP shall serve as the
Individual Improvement Plan (IIP).
4.3 The Individual Improvement Plan shall at a
minimum identify a specific course of study for the student
that the school will provide and the academic improvement
activities that the student shall undertake to help the student
progress towards meeting the standards. Academic
improvement activities may include mandatory participation
in summer school, extra instruction and/or mentoring
programs.
4.4 Individual Improvement Plan shall be prepared by
school personnel and signed by the teacher(s), principal or
designee and the parent or legal guardian of the student. A
parent or the student's legal guardian must sign and return a
copy of the student's Individual Improvement Plan to the
student's school by the end of the first marking period.
4.5 Disputes initiated by a student's parent or legal
guardian concerning the student's IIP shall be decided by the
academic review committee. Any dispute concerning the
content of a student's IEP is subject to resolution in
conformity with the Regulations, Children with Disabilities.
5.0 Summer school programs for students in grades 3, 5,
and 8 as required pursuant to 14 Del.C. § 153.
5.1 Summer school programs shall be provided by the
student's district of residence with the following exceptions:
5.1.1 Where a student attends another district as
a result of school choice or attends a charter school the
district of choice or charter school shall provide the summer
school program.
5.1.2 Where by mutual agreement of both
districts or a charter school and the parent or guardian of the
student another district provides services.
5.1.3 Where by mutual agreement of the
student's school district or a charter school and the student's
parent or guardian, the parent or guardian arranges for
summer school instruction to be provided outside the public
school system. Under such conditions the parent or guardian
shall be responsible for the cost of providing non-public
school instruction unless the districts or the charter school
and parents or guardian agree otherwise. Requirements for
secondary testing shall be met.
5.1.4 Where a student has been offered
admission into a vocational technical school district or
charter school that district or charter school may provide
summer school services.
6.0 High School Diploma Index As Derived from the 10th
Grade Assessments Pursuant to 14 Del.C. § 152.
6.1 Students who graduate from a Delaware public high
school, as members of the class of 2004 and beyond shall be
subject to the diploma index as stated herein.
6.1.1 Beginning in 2002 for the graduating class
of 2004, the Department shall calculate a diploma index
based upon the student's grade 10 Delaware Student Testing
Program performance levels in reading, writing, and
mathematics.
6.1.2 Beginning in 2005 for the graduating class
of 2006, the Department shall calculate a diploma index
based upon the student's grade 10 Delaware Student Testing
Program performance levels in reading, writing,
mathematics and the grade 11 Delaware Student Testing
Program performance levels in science and social studies.
6.2 A student may choose to participate in additional
scheduled administrations of the DSTP in order to improve
his/her diploma index. The highest earned performance
level in each content area will be used in calculating the
diploma index.
6.3 The diploma index shall be calculated by
multiplying the earned performance level in each content
area by the assigned weight and summing the results.
6.3.1 Beginning with the year 2002, the
assigned weights shall be .40 for reading, .40 for
mathematics, and .20 for writing for the graduating class of
2004.
6.3.2 Beginning with the year 2005, the
assigned weights shall be .20 for reading, .20 for
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 55
mathematics, .20 for writing, .20 for science and .20 for
social studies for the graduating class of 2006.
6.4 Students shall qualify for State of Delaware High
School diplomas as follows:
6.4.1 A student shall be awarded a
Distinguished State Diploma upon attainment of a diploma
index greater than or equal to 4.0 provided that the student
has attained a Performance Level 3 or higher in each content
area and provided that the student has met all other
requirements for graduation as established by the State and
local districts or charter schools.
6.4.2 A student shall be awarded a Standard
State Diploma upon attainment of a diploma index greater
than or equal to 3.0 and provided that the student has met all
other requirements for graduation as established by the State
and local districts or charter schools.
6.4.3 A student shall be awarded a Basic State
Diploma upon attainment of a diploma index less than 3.0
and provided that the student has met all other requirements
for graduation as established by the State and local districts
or charter schools.
6.5 Parent or Guardian Notification: Within 30 days of
receiving student performance levels and/or diploma indices,
school districts and charter schools shall provide written
notice of the same and the consequences thereof to the
student's parent or legal guardian.
7.0 Security and Confidentiality: In order to assure uniform
and secure procedures, the Delaware Student Testing
Program shall be administered pursuant to the Delaware
Student Testing Program Coordinators Handbook, as the
same, may from time to time be amended hereafter.
7.1 Every district superintendent, district test
coordinator, school principal, school test coordinator and test
administrator shall sign the certification provided by the
Department of Education regarding test security before,
during and after test administration.
7.2 Violation of the security or confidentiality of any
test required by the Delaware Code and the Regulations of
the Department of Education shall be prohibited.
7.3 Procedures for maintaining the security and
confidentiality of a test shall be specified in the appropriate
test administration materials in 14 Del.C. §170 through
§174.
7.4 Procedures for Reporting Security Breaches
7.4.1 School Test Coordinators shall report any
questionable situations to the District Test Coordinators
immediately.
7.4.2 District Test Coordinators shall report all
situations immediately to the State Director of Assessment
and Analysis.
7.4.2.1 Within 5 days of the incident the
District Test Coordinator shall file a written report with the
State Director of Assessment and Analysis that includes the
sequence of events leading up to the situation, statements by
everyone interviewed, and any action either disciplinary or
procedural, taken by the district.
7.4.2.2 Following a review of the report by
the State Director of Assessment and Analysis and the
Associate Secretary of Education for Assessment and
Accountability, an investigator from the State Department of
Education will be assigned to verify the district report.
7.4.2.3 Within 10 days of the receipt of the
report from the District Test Coordinator, the assigned
investigator shall meet with the district personnel involved in
the alleged violation. The meeting will be scheduled through
the District Test Coordinator and the investigator shall be
provided access to all parties involved and/or to any
witnesses.
7.4.2.4 The investigator shall report the
findings to the Associate Secretary for Assessment and
Accountability. Following the review the Associate
Secretary shall make a ruling describing any
recommendations and or required actions.
7.4.2.5 The ruling shall be delivered within
10 days of the receipt of all reports and information and
records shall be kept of all investigations.
8.0 Procedures for reviewing questions and response sheets
from the Delaware Student Testing Program (DSTP)
8.1 School personnel, local school board members and
the public may request to review the Delaware Student
Testing Program (DSTP) questions. In order to review the
DSTP questions individuals shall make a request in writing
to the State Director of Assessment and Analysis for an
appointment at the Department of Education.
8.1.1 At the time of the appointment, the
individual shall: provide proper identification upon arrival,
sign a confidentiality document, remain with a Department
of Education staff member while reviewing the test
questions and take nothing out of the viewing area.
8.1.2 The Department of Education's
responsibility is to do the following: schedule the review at a
mutually agreeable time, notify the local district that the
review has been requested, review the procedures for
looking at the DSTP questions, assist the individual(s) as
requested and keep records of all reviews.
8.1.3 In cases where more than one individual is
requesting to view the DSTP questions, the local school
district shall send a representative to sit in on the review.
8.2 Parent/guardian(s) may request to view the test
questions and their student's responses. In order to review
the DSTP questions and their student's responses parents/
guardian(s) shall make a request in writing to the State
Director of Assessment and Analysis for an appointment at
the Department of Education. The Department shall be
allowed sufficient time to secure a copy of student responses
from the test vendor.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
56 FINAL REGULATIONS
8.2.1 At the time of the appointment, the
individual shall: provide proper identification upon arrival,
sign a confidentiality document, remain with a Department
of Education staff member while reviewing the test
questions and take nothing out of the viewing area.
8.2.2 The Department of Education's
responsibility is to do the following: schedule the review at a
mutually agreeable time, notify the local district that the
review has been requested, review the procedures for
looking at the DSTP questions, assist the individual(s) as
requested and keep records of all reviews.
8.2.3 In the case of the stand-alone writing
response, the parent/guardian(s) may go to the local school
district or charter school to view the test responses.
See 4 DE Reg. 464 9/1/00
See 5 DE Reg. 620 (9/1/01)
9.0 Invalidations and Special Exemptions
9.1 Invalidations for students in grades 3, 5, 8 and 10
for reading, writing and mathematics and grades 4,6,8 and
11 for science and social studies: Invalidations are events or
situations that occur during the administration of the DSTP
assessments which may result in a statistically unreliable
score report for a student. Invalidations may occur as a result
of either: intentional student conduct, including but not
limited to cheating and disruptive behavior; or unforeseen
and uncontrollable events, including but not limited to onset
of illness.
9.1.1 Reporting of situations that occur during
testing.
9.1.1.1 The school building principal or
designee shall notify the District Test Coordinator in writing
within 24 hours of events or situations that the principal
reasonably believes may result in an invalid score report for
a student(s).
9.1.1.2 The District Test Coordinator shall
notify the Department of Education staff person assigned to
the district for test security purposes as soon as the
Coordinator learns of events or situations which may result
in invalidation(s).
9.1.1.2.1The District Test Coordinator
shall submit a DSTP Incident Report Form within three
business days of the events. Written reports from the
building principal or designee and any staff must be included
with the DSTP Incident Report Form.
9.1.1.3 The Director of Assessment for the
Department of Education shall determine whether the
reported events warrant invalidating a student(s) score and
such decision shall be final.
9.1.1.3.1If the Director determines that the
events also warrant a security investigation the matter will be
referred to the Department of Education staff person
assigned to the district for test security purposes.
9.1.2 Consequences of invalidations.
9.1.2.1 Whenever the Director of Assessment
for the Department of Education determines that a student's
assessment test score is invalid as a result of an intentional
act of the student, the student will be assigned a performance
level 1 (well below standard) for that assessment and will be
subject to such consequences as may otherwise be imposed
pursuant to law for students who score at performance level
1 of the assessment; the assessment test score of any such
student shall be reported and counted in the test scores of the
student's school for all purposes, including school and
district accountability.
9.1.2.2 Whenever the Director of Assessment
for the Department of Education determines that a student's
assessment test score is invalid as a result of an event which
is unforeseen and beyond the control of the student and if the
student is unable to participate in a regularly scheduled test
make-up, the student shall not be subject to any of the
consequences as would otherwise be imposed pursuant to
law; the assessment score of any such student shall not be
reported or counted in the test scores of the student's school
for any purpose, including school and district accountability.
9.2 Special Exemptions for students in grades 3, 5, 8,
and 10 for reading, writing and mathematics and grades 4, 6,
8 and 11 for science and social studies: A special exemption
may be available when a student's short-term, physical or
mental condition prevents the student from participating in
the DSTP assessments even with accommodations, or when
an emergency arising before the start of the test prevents the
student's participation.
9.2.1 Special exemptions for students who are
tested according to the Department of Education's
Guidelines for Inclusion of Students with Disabilities and
Students with Limited English Proficiency are also available
as provided in the Guidelines.
9.2.2 Requests for special exemptions based on
physical or mental condition.
9.2.2.1 Special exemptions based on a
student's physical or mental condition may be available for
students suffering from terminal illnesses or injuries or
receiving extraordinary short-term medical treatment for
either a physical or psychiatric condition. Requests for
exemptions on these grounds shall be accompanied by a
signed statement from the student's treating physician
which; describes the nature of the terminal condition or
extraordinary treatment; confirms that the terminal condition
or the extraordinary treatment arose more than 60 calendar
days before the test administration for which the exemption
is requested and has substantially prevented the student from
accessing educational services since its inception; and
confirms that the condition or treatment is expected to be
resolved or completed within 12 months of the test
administration.
9.2.2.2 The District Test Coordinator shall
submit a completed Request for Special Exemption Form to
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 57
the Director of Assessment for the Department of Education
at least 60 calendar days before the first day of testing. A
copy of the physician's statement required in the preceding
subsection will accompany the request.
9.2.2.2.1The Director of Assessment shall
convene a review committee of not less than three
Department of Education staff to review requests for special
exemptions. The Director shall submit a recommendation on
each request to the Associate Secretary for Assessment and
Accountability.
9.2.2.2.2The Associate Secretary shall
decide whether a request for a special exemption based on
physical or mental conditions should be granted. The
Associate Secretary shall notify the District Test Coordinator
of the decision. The Associate Secretary's decision shall be
final.
9.2.3 Request for special exemptions based on
emergency.
9.2.3.1 Emergencies are unforeseen events or
situations arising no more than 60 calendar days before the
start of the test administration. They may include, but are not
limited to, death in a student's immediate family, childbirth,
accidents, injuries and hospitalizations.
9.2.3.2 Special exemptions due to an
emergency may be requested for the entire test or for one or
more content areas, as the district determines appropriate.
9.2.3.3 The District Test Coordinator shall
notify the Director of Assessment for the Department of
Education as soon as the Coordinator learns of events or
situations which may result in a request for a special
exemption due to an emergency.
9.2.3.3.1The District Test Coordinator
shall submit a completed DSTP Request for Special
Exemption Form to the Director of Assessment for the
Department of Education within 7 calendar days of the last
day for make up testing. Requests for exemptions on these
grounds shall be accompanied by a signed statement from
the student's treating physician which describes the nature of
the situation.
9.2.3.3.2The Director of Assessment shall
convene a review committee of not less than three
Department of Education staff to review requests for special
exemptions due to an emergency. The Director shall submit
a recommendation on each request to the Associate
Secretary for Assessment and Accountability.
9.2.3.3.3The Associate Secretary shall
decide whether a request for a special exemption based on an
emergency should be granted. The Associate Secretary shall
notify the District Test Coordinator of the decision. The
Associate Secretary's decision shall be final.
9.2.4 Consequences of Special Exemptions.
9.2.4.1 Any special exemption granted by the
Department of Education is limited to the testing period for
which it was requested and does not carry forward to future
test administrations.
9.2.4.2 Students who are granted a special
exemption shall not be reported or counted in the school's
test scores for any purpose, including school and district
accountability.
9.2.4.3 Students who are granted a special
exemption shall not be subject to any of the student testing
consequences for students in grades 3, 5, or 8 for the testing
period to which the exemption applies.
See 5 DE Reg. 2115 (5/1/02)
Regulatory Implementing Order
103 School Accountability for Academic Performance
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks the consent of the
State Board of Education to amend regulation 103 School
Accountability for Academic Performance by changing the
regulation to conform to the changes in the state and federal
statutes which address school, district and state
accountability for student performance. The title of the
amended regulation has been changed to Accountability for
Schools, Districts and the State. The amended regulation
defines Adequate Yearly Progress (AYP) as it affects student
achievement and discusses how AYP is determined and
calculated. The amended regulation addresses other
academic indicators, assessment criteria and the school and
district review process. The five annual performance
classifications for schools, districts and the State are also
defined and the consequences are discussed.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on April 21,
2003, in the form hereto attached as Exhibit A. The State
Board of Education recommended that "Under
Improvement" be added to 5.4 and 5.5 to clarify that the new
performance classifications "Academic Progress" and
"Academic Watch" mean that the school or district is under
improvement. This change was made to the regulation.
II. Findings of Facts
The Secretary finds that it is appropriate to amend this
regulation to conform with changes in state and federal
statutes
III. Decision to Amend the Regulation
For the foregoing reasons, the Secretary concludes that
it is appropriate to amend the regulation. Therefore,
pursuant to 14 Del. C. §122, the regulation attached hereto as
Exhibit "B" is hereby amended. Pursuant to the provision of
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
58 FINAL REGULATIONS
14 Del. C. §122(e), the regulation hereby amended shall be
in effect for a period of five years from the effective date of
this order as set forth in SectionV. below.
IV. Text and Citation
The text of the regulation amended hereby shall be in
the form attached hereto as Exhibit "B", and said regulation
shall be cited as 14 DE Admin. Code § 103 in the
Regulations of the Department of Education.
V. Effective Date of Order
The actions hereinabove referred to were taken by the
Secretary pursuant to 14 Del. C. §122 on June 19, 2003. The
effective date of this Order shall be ten (10) days from the
date this Order is published in the Delaware Register of
Regulations.
IT IS SO ORDERED the 19th day of June, 2003.
Department of Education
Valerie A. Woodruff, Secretary of Education
Approved this 19th day of June, 2003
State Board of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
103 School Accountability for Academic Performance
1.0 Accountability School: The school to which a student's
performance is assigned shall be the Accountability School.
Except as defined in sections 1.1 to 1.3 the Accountability
School shall be the school that provided the majority of
instructional services to that student in a given school year so
long as the student was enrolled in the school for more than
530 school hours or more than 90 school days. No student
shall have his/her performance assigned to more than one
Accountability School in a given school year.
1.1 Except as in section 1.1.1, for students enrolled in
an intra-district intensive learning center or intra-district
special school or program operating within one or more
existing school facilities the school facility in which the
student is served shall be the Accountability School.
1.1.1 If in such a program the number of students
included in a School Composite Score would be greater than
or equal to 30 a school district may elect to define the
program as an Accountability School.
1.1.2 Within 30 days of request by the Secretary of
Education school districts shall inform the Secretary of
Education in writing of any Accountability Schools they
elect to define pursuant to section 1.1.1. Such definitions
may not be changed for four measurement cycles.
1.2 For students enrolled in inter-district special schools
or programs that have an agreement to serve students from
multiple school districts that school or program shall be the
Accountability School provided the number of students
included in the School Composite Score is greater than or
equal to 30.
1.2.1 If in such a school or program the number of
students included in a School Composite Score is less than
30 the student scores shall be assigned to the Accountability
School the student would have been assigned to if an
Individual Education Program was not in place.
1.3 For students enrolled in alternative school programs
pursuant to 14 Del. C., Chapter 16, or the Delaware
Adolescent Program the Accountability School shall be the
school that assigned them to the program. For the purposes
of this chapter the time the students were enrolled in the
alternative or transitional program shall be credited to the
Accountability School.
2.0 Composite Score: A School Composite Score for each
Accountability School shall be created utilizing the formula
found in 14 Del. C., Section154(b)(1).
2.1 The School Composite Score shall include the
collective performance of all students in each Standards
Cluster as defined in section 2.6 and 2.7 below on the
assessments administered pursuant to 14 Del. C., Section
151 (b) and (c).
2.1.1 For students who take a portion of the
assessment more than once within a measurement cycle, the
best test score] except re-tests by 12th grade students shall be
included in the School Composite Score.
2.1.2 For school accountability purposes a student
not assessed either pursuant to 14 Del. C., Section 151 (b)
and (c)) or not assessed with alternate assessments approved
by the Department of Education shall be assigned to
Performance Level 0, and such score shall be assigned to the
school that failed to assess the student.
2.1.3 Except for students who participate in out-oflevel
testing, students who test with non-aggregable
conditions as defined in the Department of Education's
Guidelines for the Inclusion of Students with Disabilities and
Students with Limited English Proficiency shall have her/his
performance level included in the School Composite Score.
2.1.4 For school accountability purposes a student
who tests but does not meet attemptedness rules as defined in
the Department of Education's Scoring Specifications, who
participates in out-of-level testing or otherwise receives an
invalid score shall be assigned to Performance Level 1.
2.1.5 A student participating in alternate
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 59
assessments shall have her/his performance level included in
the School Composite Score.
2.2 Schools with more than one tested grade shall
receive a single School Composite Score determined by
aggregating the performance levels of students who score at
each performance level in each tested grade.
2.3 Baselines for Accountability Schools shall be
determined using two years of their students' performance,
beginning with the Accountability School's first two
administrations of the Delaware Student Testing Program.
New School Composite Scores shall be established each two
years thereafter.
2.3.1 Prior to 2003 reading, writing and
mathematics results shall be utilized to determine School
Composite Scores.
2.3.2 In 2003 two School Composite Scores shall
be calculated. The School Composite Score used to
determine performance shall include reading, writing and
mathematics results. The School Composite Score used as
the school's new baseline shall include reading, writing,
mathematics, science and social studies results.
2.3.3 After 2003 reading, writing, mathematics,
science and social studies results shall be utilized to
determine all School Composite Scores.
2.4 Schools shall be evaluated for performance by
comparing their performance on the three measures defined
in section 3.0 over a measurement cycle.
2.5 Student performance in a tested grade shall be
apportioned in equal weights to each grade in a Standards
Cluster, except that Kindergarten shall be weighted at 10%.
2.6 Prior to the inclusion of science and social studies
results in the School Composite Score the weights assigned
to each subject shall be 40% for reading, 40% for
mathematics and 20% for writing.
2.6.1 Standards Clusters shall be defined as
follows:
Standards
Cluster
Spring Assessments, Calendar Year A
Grades K-3 Grade 3 reading. writing, mathematics
Grades 4-5 Grade 5 reading. writing, mathematics
Grades 6-8 Grade 8 reading, writing, mathematics
Grades 9-
10
Grade 10 reading, writing, mathematics
2.7 When science and social studies results are included
in the School Composite Score, the weights assigned to each
subject shall be as follows:
2.7.1 For assessments in grades 3 through grade 6:
35% for reading, 35% for mathematics, 10% for writing,
10% for science and 10% for social studies.
2.7.2 For assessments in grades 8 through grade
11: 20% for reading, 20% for mathematics, 20% for writing,
20% for science and 20% for social studies.
2.7.3 Standards Clusters shall be defined as
follows:
Standards
Cluster
Spring Assessments,
Calendar Year A
Fall Assessments,
Calendar Year A
Grades K-3 Grade 3 ading.
writing, mathematics
Grade 4 science,
social studies
Grades 4-5 Grade 5 ading.
writing, mathematics
Grade 6 science,
social studies
Grades 6-8 Grade 8 ading,
writing,
mathematics,
science, social
studies
Grades 9-10 Grade 10 reading,
writing, mathematics
Grades 9-11 Grade 11 science,
social studies
re
re
re
See 5 DE Reg. 1281 (12/1/01)
3.0 Performance Criteria: The Department of Education
shall determine the performance status of a school by
utilizing three measures of performance.
3.1 Absolute Performance: The Absolute Performance
of the school's student body on the assessments administered
pursuant to 14 Del. C., Section 151 (b) and (c)) measured
using the School Composite Score. Target School
Composite Scores shall be determined by the Department of
Education with the consent of the State Board of Education.
3.2 Improvement Performance: The school's record in
improving its School Composite Score over a measurement
cycle by an amount determined by the Department of
Education with the consent of the State Board of Education.
3.2.1 The expected improvement for a given school
shall be the difference between the school's current
composite score and a target School Composite Score that all
schools are expected to achieve divided by the number of
measurement cycles the school has to reach the target School
Composite Score.
3.2.2 For schools that have already met the target
School Composite Score, a higher target shall be established.
Target School Composite Scores and time periods shall be
determined by the Department of Education with the consent
of the State Board of Education.
3.3 Distributional Performance: The school's record in
improving the performance of low achieving students over a
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
60 FINAL REGULATIONS
measurement cycle by an amount determined by the
Department of Education with the consent of the State Board
of Education.
3.3.1 The expected Distributional Performance for
a given school shall be a specified decrease in the percentage
of students performing below the standard (those in levels 0,
1, and 2) in tested content areas while the percentage of
students in Level 0 and the percentage of students in Level 1
in tested content areas do not increase by a targeted amount.
3.3.1.1 All regulations utilized to calculate
school composite scores pursuant to 2.0 shall also apply to
calculate distributional performance.
3.3.2 An Accountability School that has no change
in the percentage of students performing below the standard
or reduces that percentage by less than the target shall be
assessed by whether the Distributional Composite Score,
calculated by including only those students who have not
met the standard, increases by a targeted amount.
Distributional Targets shall be determined by the
Department of Education with the consent of the State Board
of Education.
See 5 DE Reg. 1281 (12/1/01)
4.0 Performance Classifications: Schools shall be rated by
the Department of Education based on their collective
performance on the three specific measures of performance
described in section 3.0. The performance classification of
each school shall be reported in School Profiles.
4.1 Superior Performance: A school's performance is
deemed excellent. Schools in this category shall have met or
exceeded performance targets as determined by the
Department of Education with the consent of the State Board
of Education.
4.2 Commendable Performance: A school's
performance is deemed acceptable. Schools in this category
shall have met sufficient performance targets as determined
by the Department of Education with the consent of the State
Board of Education.
4.3 Under School Improvement: A school's
performance is deemed as needing improvement. Schools in
this category have not met sufficient performance targets as
determined by the Department of Education with the consent
of the State Board of Education. Schools initially classified
in this category shall be evaluated using a School Review
Process pursuant to section 5.0 below. Following a final
classification of a school as Under School Improvement the
school shall be required to undertake improvement and
accountability activities as defined in 14 Del.C., Section
154(d)(2).
4.4 Unsatisfactory Performance: A school's
performance is deemed as unacceptable. Schools Under
School Improvement who after two years have not met
sufficient performance targets as determined by the
Department of Education with the consent of the State Board
of Education shall be classified as Unsatisfactory. Schools
in this category shall be required to undertake improvement
and accountability activities as defined in 14 Del.C., Section
154(d)(3).
4.5 Schools required to develop a school improvement
plan pursuant to 14 Del.C., Section 154(d)(2) and (3) shall
include specific strategies to improve the performance of
students in each low performing sub-population as defined
by the Department of Education.
See 5 DE Reg. 1281 (12/1/01)
5.0 School Review Process: Schools classified as Under
School Improvement shall be evaluated by a School Review
Team.
5.1 The purpose of the evaluation is to determine
whether additional evidence of school performance
demonstrates that a school should be reclassified as
Commendable.
5.2 For each school subject to review, the School
Review Team shall consist of four members who shall
include two representatives of the Department of Education
and two educators from Delaware public schools, and may
include educators who have retired within the previous five
years. Each team shall be chaired by a representative of the
Department of Education. All School Review Team
members shall be appointed by the Secretary of Education.
5.3 Schools subject to review shall provide the
Department of Education with evidence of school
performance in a form acceptable to the Department. Such
evidence, along with school performance data available to
the Department of Education, shall provide the basis for the
evaluation of the school's performance.
5.4 Criteria used to evaluate other evidence of school
performance shall include at a minimum:
5.4.1 The use and analysis of student achievement
data and other data to determine areas of need
5.4.2 Curriculum and instructional decisions based
on student needs identified through data analysis
5.4.3 Professional development aligned to
curriculum, instruction and identified student needs
5.4.4 Community involvement in the school's
decision making process, including evaluation and planning
5.4.5 Curriculum aligned to the state content
standards
5.4.6 Research-based instruction aligned to
curriculum and teaching strategies based on student needs
5.4.7 Resources aligned with student needs and
goals and objectives identified in the School Improvement
Plan
5.4.8 The school develops and implements
strategies to promote a positive climate supportive of student
achievement.
5.5 The School Review Team shall evaluate evidence
of school performance with respect to the criteria in section
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 61
5.4 above using a scoring process approved by the
Department of Education. A target score shall determine
whether a school should receive a site visit or shall remain
classified as Under School Improvement. Target scores for
site visits shall be determined by the Department of
Education with the consent of the State Board of Education.
No school with a score below the target shall receive a site
visit or be reclassified.
5.5.1 Schools that are designated to receive a site
visit shall have the option of declining such a visit. No
school shall receive a recommendation to be reclassified to
Commendable without a site visit by a School Review Team.
The district in which the school is located shall have five
working days to notify the Secretary of Education in writing
if they do not wish to receive a site visit. Charter schools
shall have five working days to notify the Secretary of
Education in writing if they do not wish to receive a site
visit. All schools that decline a site visit shall remain
classified as Under School Improvement.
5.6 Following any site visits the School Review Team
shall recommend to the Secretary of Education whether a
school shall remain Under School Improvement or whether
additional evidence exists to reclassify the school to
Commendable Performance. Target scores used as the basis
for such recommendations shall be determined by the
Department of Education with the consent of the State Board
of Education.
5.6.1 Upon such a recommendation the Secretary
of Education may reclassify a school to Commendable
Performance subject to the consent of the State Board of
Education.
See 4 DE Reg. 1661 (4/1/01)
See 5 DE Reg. 1281 (12/1/01)
6.0 Appeals Process: A school may appeal its performance
classification as follows.
6.1 The school must file a written notice of appeal with
the Secretary no later than 30 days after receiving written
notification of its performance classification. The notice of
appeal shall state with specificity the grounds for the appeal,
and shall be signed by the principal of the school and except
in the case of a charter school, the superintendent of the
district that has authority over the school.
6.2 Upon receipt of a satisfactory form of notice of
appeal, the Secretary will decide whether to hear the appeal
or assign it to a hearing officer.
6.3 The Secretary or hearing officer, as the case may be,
will establish a date upon which the appeal will be heard.
The school shall be given not less than 20 days notice of the
hearing date. A written position statement, legal brief or
memorandum in support of its appeal shall be filed by the
school with the Secretary or hearing officer no later than 10
days prior to the hearing date. Any written statement must
clearly identify the issues raised in the appeal. Briefs or
legal memoranda shall be submitted with the written
statement if the appeal is based upon a legal issue or
interpretation.
6.4 A school challenging its classification must prove
by clear and convincing evidence that the classification
assigned to it by the department was contrary to law or
regulations, was not supported by substantial evidence, or
was arbitrary or capricious, or should be changed because of
other extraordinary mitigating circumstances beyond the
school's control.
6.5 If the appeal has been assigned to a hearing officer,
the hearing officer will issue a recommended decision to the
Secretary in the form of a Proposed Order. The Secretary
will not conduct any further hearings on the matter, but with
the consent of the State Board of Education, will issue a final
decision within 30 working days thereafter.
See 5 DE Reg. 1281 (12/1/01)
103 Accountability for Schools, Districts and the State.
1.0 Accountability
1.1 Accountability: All public schools, including
charter schools, reorganized and vocational-technical school
districts and the state shall be subject to the calculation and
reporting of Adequate Yearly Progress (AYP) as prescribed
by the federal Elementary and Secondary Education Act
(ESEA), 20 U.S. C.A. §6301 et seq. Additionally, public
schools, including charter schools, reorganized and
vocational-technical school districts shall be subject to the
applicable rewards, sanctions and other accountability
activities as prescribed in this regulation.
2.0 Adequate Yearly Progress (AYP)
2.1 Adequate Yearly Progress shall be determined by
the Department of Education for all public schools,
including charter schools, reorganized and vocationaltechnical
school districts and the State on an annual basis. In
order for a public school, including a charter school,
reorganized or vocational-technical school district or the
State to meet AYP, the aggregate student population and
each subgroup of students as identified in ESEA, must meet
or exceed the target for percent proficient in the state
assessments of reading/language arts and mathematics; 95%
of the students as an aggregate and within each subgroup
must participate in the state assessments of reading/language
arts and mathematics, except for those students who meet the
exemption criteria as specified in 14 DE Admin. Code 101
§9.0; and the respective entity must [maintain or] show
progress towards the state target for other academic
indicator(s). In calculating the percent proficient each year,
the state will average the most recent two years of percent
proficient (including the current year's percent proficient)
and compare the results to the current year percent
proficient. The highest percent proficient score will be used
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
62 FINAL REGULATIONS
to determine the school, district or State AYP status.
2.2 Full academic year for accountability:
2.2.1 For school accountability students
enrolled continuously in the school from September 30
through May 31 of a school year and those students
identified in 3.1 and 3.2, shall be considered enrolled for a
full academic year.
2.2.2 For district accountability students
enrolled continuously in the district (but not necessarily the
same school), from September 30 through May 31 of a
school year, and those students identified in 3.1 and 3.2,
shall be considered enrolled for a full academic year.
2.2.3 For state accountability students enrolled
continuously in the state (but not necessarily the same school
or district) from September 30 through May 31 of a school
year shall be considered enrolled for a full academic year.
2.3 Proficient: For accountability purposes students
who score at Performance Level 3 (Meets the Standard) or
above and who have met the requirements of a Full
Academic Year as defined in 2.2 shall be deemed proficient.
Students who score at Performance Level 2, Level 1 or Level
0 who have met the requirements of a Full AcademicYear as
defined in 2.2 shall not meet the definition of proficient.
2.4 Participation Rate: For accountability purposes in
school years 2002-2003 through 2004-2005, the
participation rate for each subgroup, all public schools,
including charter schools, districts, and the State, shall be the
number of students who participate in the DSTP in grades
3,5, 8 and 10 divided by the number of students enrolled in
these tested grades during the testing period. Beginning with
the 2005-2006 school year the participation rate shall include
the number of students who participate in the DSTP in
grades 3 through 8 inclusive and grade 10. Students
exempted by 14 DE Admin. Code 101, Section 9.0 are not
included in the participation rate calculation. For schools
with no accountability tested grades (K-2), the participation
rate shall be determined by the number of students who
participated in the work sampling or grade 2 DSTP
assessments divided by the number of students enrolled
during the testing period.
2.5 Safe Harbor: For accountability purposes if a
school, district or the State fails to meet the target for percent
proficient for a given subgroup or for the entity in aggregate,
safe harbor provisions shall be examined for that group.
When the percentage of students in a subgroup not meeting
the definition of proficient decreases by at least 10% when
compared to the previous year's data, the participation rate
for the population is at least 95%, and the subgroup
maintains or shows progress on the other academic indicator
the subgroup will have met AYP.
2.6 Other academic indicator:
2.6.1 High School: For AYP purposes, the other
academic indicator shall be graduation rate as defined as the
number of students in one cohort who started in the school/
district/state in 9th grade and graduated four years later,
[excluding students who earn a GED certificate,] divided
by the same number plus those that have dropped out during
the same four year period.
2.6.1.1 The statewide target for the high
school other academic indicator shall be a graduation rate of
90% by the school year 2013-2014. Beginning with the
school year 2002-2003, if the graduation rate is used for safe
harbor purposes, the high school shall be expected to
maintain its graduation rate or show positive progress when
compared to the previous year.
2.6.1.2 A school that does not maintain its
graduation rate or show positive progress from the previous
year shall be considered as not meeting AYP for that year.
2.6.2 Elementary and Middle School: For AYP
purposes, the Other Academic Indicator for elementary and
middle schools shall be the percent of students proficient on
the grade 4, 6, and 8 DSTP science and social studies
assessments combined. The science and social studies
content standards are arranged by grade clusters. Students
shall be tracked back to the school/district that provided the
instructional services for the grade cluster.
2.6.2.1 The statewide target for the
elementary and middle school other academic indicator shall
be a percent proficient of 85% by the school year 2013-2014.
Beginning with the school year 2002-2003, when compared
to the previous year, the school or subgroup, if used for safe
harbor purposes, shall be expected to maintain its percent
proficient or show positive progress when compared to the
previous year towards the state target of 85%.
2.6.2.2 An elementary or middle school that
does not maintain its percent proficient for the other
academic indicator or show positive progress from the
previous year shall be considered as not meeting AYP for
that year.
2.6.3 For state and district accountability
purposes, the state or a district shall be expected to maintain
both the graduation rate and percent proficient or show
positive progress when compared to the previous year
towards the state target of 90% for the high school other
academic indicator and 85% for the elementary and middle
school other academic indicator.
2.7 Annual Objective: The annual objectives for
reading/language arts and mathematics shall be determined
by the Department of Education and published annually.
The annual objectives shall be the same for all schools,
districts and subgroups of students.
2.8 Intermediate Target: There shall be seven
intermediate targets with the first intermediate target
occurring in the 2004-2005 school year. The second
intermediate target shall occur in 2006-2007; the third in
2008-2009; the fourth in 2009-2010; the fifth in 2010-2011,
the sixth in 2011-2012 and the seventh in 2012-2013. By the
end of the school year 2013-2014, all students in all
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 63
subgroups shall be proficient in reading/language arts and
mathematics. The intermediate targets shall be calculated
using the procedures as prescribed by the federal Elementary
and Secondary Education Act (ESEA), 20 U.S. C.A. §6301
et seq.
2.9 Starting Point: A single statewide starting point
shall be calculated for reading/language arts and a single
statewide starting point shall be calculated for mathematics
using the procedures as prescribed by the federal Elementary
and Secondary Education Act (ESEA), 20 U.S. C.A. §6301
et seq.
2.10 Subgroup categories: For AYP purposes,
subgroup categories shall be delineated as follows: 1)
Children with Disabilities (as per IDEA); 2) Economically
Disadvantaged Students, as determined by eligibility for free
and reduced lunch program; 3) Students with Limited
English Proficiency, as determined by the language
proficiency assessment; and 4) Race/ethnicity, to be
furthered divided into African American/black, American
Indian/Alaska native, Asian/Pacific Islander, Hispanic, and
White. Such subgroup categories shall include all students
eligible for the AYP calculation as further defined
throughout this Chapter. The "All" categories shall include
all students in the entity for which AYP is calculated and
who meet all other eligibility criteria for the AYP
calculation.
2.11 Adequate Yearly Progress (AYP) Calculations
2.11.1 For each public school, including charter
schools, reorganized and vocational-technical school district,
and the State, AYP shall be calculated annually.
2.11.2 School AYP: In order to meet AYP, the
aggregate student population of a school and each subgroup
of students within a school, shall meet or exceed the annual
target for percent proficient as defined in 2.3; the
participation rate shall be 95% or greater; and the school in
the aggregate shall maintain or show progress on the other
academic indicator. If there are 15 or more students in the
aggregate or in any subgroup the percent proficient shall be
reported. If there are 40 or more students in the aggregate or
in any subgroup the percent proficient shall be reported and
used to determine AYP status and accountability ratings.
The Safe Harbor provision as defined in 2.5 shall be used for
a school that does not meet AYP in the aggregate or in any
subgroup within the school.
2.11.3 District AYP: In order to meet AYP, the
aggregate student population of a district and each subgroup
of students within a district, shall meet or exceed the annual
target for percent proficient as defined in 2.3; the
participation rate shall be 95% or greater; and the district in
the aggregate shall maintain or show progress on both of the
other academic indicators. If there are 15 or more students in
the aggregate or in any subgroup the percent proficient shall
be reported. If there are 40 or more students in the aggregate
or in any subgroup the percent proficient shall be reported
and used to determineAYP status and accountability ratings.
The Safe Harbor provision as defined in 2.5 shall be used
for a district that does not meet AYP in the aggregate or in
any subgroup within the school.
2.11.4 State AYP: In order to meet AYP, the
aggregate student population in the State and each subgroup
of students within the State, shall meet or exceed the annual
target for percent proficient as defined in 2.3; the
participation rate shall be 95% or greater; and the State in the
aggregate shall maintain or show progress on both of the
other academic indicators. If there are 15 or more students
in the aggregate or in any subgroup the percent proficient
shall be reported. If there are 40 or more students in the
aggregate or in any subgroup the percent proficient shall be
reported and used to determine AYP status and
accountability ratings. The Safe Harbor provision as defined
in 2.5 shall be used for state accountability if the State does
not meet AYP in the aggregate or in any subgroup within the
State.
2.11.5 Under Improvement: A school or district
shall be deemed Under Improvement if AYP is not met two
consecutive years in the same content area of reading/
language arts or mathematics, or if a school or district in the
aggregate does not maintain or show progress on the Other
Academic Indicator(s).
See 5 DE Reg. 1281 (12/1/01)
3.0 Accountability School and/or District: For AYP
purposes, the school/district to which a student's
performance is assigned for a full academic year shall be the
Accountability School/District. No student shall have his/
her performance assigned to more than one Accountability
School/District in a given school year.
3.1 For a student enrolled in an intra-district intensive
learning center or intra-district special school or program
operating within one or more existing school facilities, the
school/district of residence shall be considered the
Accountability School/District for the student. For a student
enrolled in inter-district special schools or programs that
have an agreement to serve students from multiple school
districts, the school/district of residence shall be considered
the Accountability School/District.
3.2 For a student enrolled in an alternative school
program pursuant to 14 Del. C., Chapter 16, or the Delaware
Adolescent Program, the Accountability School/District
shall be the school/district that assigned such student to the
program or the school/district of residence. For the purposes
of this chapter the time the students were enrolled in the
alternative or transitional program shall be credited to the
Accountability School/District.
3.3 For a student who participates in the choice
program pursuant to 14 Del.Code, Chapter 4 the
Accountability School/District shall be the school/district to
which the student has choiced.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
64 FINAL REGULATIONS
See 5 DE Reg. 1281 (12/1/01)
4.0 Assessment Criteria.
4.1 For a student who takes a portion of the assessment
more than once during the school year, the first score shall
be included in the AYP calculation.
4.2 A student who tests with non-aggregable conditions
as defined in the Department of Education's Guidelines for
the Inclusion of Students with Disabilities and Students with
Limited English Proficiency shall have his/her earned
performance level included in the calculation of AYP.
4.3 For accountability purposes a student who tests but
does not meet attemptedness rules as defined in the
Department of Education's scoring specifications or
otherwise receives an invalid score shall be deemed as not
meeting proficiency.
4.4 A student participating in alternate assessments
shall have her/his [earned] performance level included in
the AYP calculation.
4.5 Schools with more than one tested grade shall
receive a single accountability rating.
4.6 Student performance in a tested grade shall be
apportioned in equal weights to each grade in a standards
cluster, except that Kindergarten shall be weighted at 10%
and grade 10 shall be weighted at 100%. Beginning with the
school year 2005-2006 students in grades 4,5,6,7,8, and 10
will count 100%. Students in grade 3 will continue to be
weighted to each grade in the K-3 standards cluster.
4.7 For AYP purposes the reading/language arts
percent proficient shall be based on a combination of the
reading and writing DSTP assessments. The reading percent
proficient scores shall be weighted to count 90% and the
writing percent proficient scores shall be weighted to
count10%.
4.8 For AYP purposes, the mathematics percent
proficient shall be based on 100% of the DSTP mathematics
assessment.
See 5 DE Reg. 1281 (12/1/01)
5.0 Performance Classifications: Schools and districts shall
receive one of five levels of performance classification
annually.
5.1 Superior: A school or district's performance is
deemed excellent. Schools or districts in this category shall
have met AYP while the school or district is not Under
Improvement and additional rigorous state criteria are met.
The additional state criteria shall be developed by the
Department of Education with the consent of the State Board
of Education.
5.2 Commendable: A school or district's performance is
deemed above average. Schools or districts in this category
shall have met AYP while the school or district is not Under
Improvement.
5.3 Academic Review: A school or district's
performance is deemed acceptable. Schools or districts in
this category shall not have met APY for one year and are
not Under Improvement.
5.4 Academic Progress [- Under Improvement]: A
school or district's performance is deemed as needing
improvement. Schools or districts in this category shall have
met AYP for one year while the school or district is Under
Improvement. If a school or district was classified as
Academic Watch the prior year, all accountability sanctions
from that prior year remain in effect.
5.5 Academic Watch [- Under Improvement]: A
school or district's performance is deemed as unsatisfactory.
Schools or districts in this category shall not have met AYP
for two or more years and shall be Under Improvement.
See 4 DE Reg. 1661 (4/1/01)
See 5 DE Reg. 1281 (12/1/01)
6.0 Schools and Districts that are classified as Under
Improvement.
6.1 Accountability sanctions for schools that are
classified as Under Improvement:
6.1.1 Under Improvement -Year 1 - A school
shall review and modify its current School Improvement
Plan outlining additional specific school improvement
activities to be implemented beginning in this same year. A
school designated as Title I shall implement federal ESEA
Choice. The school shall follow the district Federal ESEA
Choice Program.
6.1.2 Under Improvement - Year 2 - A school
shall continue to review and modify the School
Improvement Plan as needed. A school designated as Title I
shall continue to offer federal ESEA Choice. In addition a
Title I school shall provide supplemental services according
to the federal ESEA requirements. Schools not designated
as Title I shall give priority, as appropriate, within their extra
time services to students in those subgroups that have not
met the target for percent proficient in the reading/language
arts and/or mathematics assessments.
6.1.3 Under Improvement - Year 3 - A school
shall continue with the activities as per 6.1.2. In addition, all
schools shall be subject to corrective action as outlined by
federal ESEA requirements.
6.1.4 Under Improvement - Year 4 - A school
shall continue with the activities as per 6.1.3. In addition,
shall develop a plan for restructuring as outlined by federal
ESEA requirements.
6.1.5 Under Improvement - A school shall
continue with the activities as per 6.1.2. In addition, the
school shall implement the restructuring plan as outlined by
federal ESEA requirements.
6.2 Accountability sanctions for districts that are
classified as Under Improvement:
6.2.1 Under Improvement - Year 1 - A district
shall develop and implement a District Improvement Plan.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 65
6.2.2 Under Improvement - Year 2 - A district
shall evaluate and modify the District Improvement Plan and
shall incorporate such plan into the Consolidated
Application.
6.2.3 Under Improvement - Year 3 - A district
shall continue with the activities outlined in 6.2.2. In
addition the district shall develop a corrective action plan as
outlined by Federal ESEA requirements.
6.2.4 Under Improvement - Year 4 - A district
shall continue with the activities as outlined in 6.2.3. In
addition the district and the Department of Education shall
evaluate the corrective action plan and make appropriate
modifications as needed.
See 5 DE Reg. 1281 (12/1/01)
7.0 Review Process: A school or district deemed Under
Improvement may review school or district level data,
including academic assessment data upon which the
proposed classification is based. The school or district shall
present statistical evidence or other substantive reasons why
the classification should be changed before the final
classification will be determined.
7.1 The school or district must file a written notice of
review with the Secretary no later than 15 calendar days after
receiving preliminary notification of its designation of Under
Improvement. The request for review shall state with
specificity the grounds for the review, and shall be signed by
the principal or lead authority of the school, or the signature
of the Superintendent of the district. This request for review
shall include all supporting evidence and documentation and
shall be clear and concise.
7.2 Upon receipt of a written notice of review, the
Department of Education shall conduct a review of the
evidence or other substantive reasons presented by the
school or district.
7.3 The Department of Education shall make a final
determination within 30 calendar days from the written
notice of review on the Under Improvement status of the
school or district based on the evidence or other substantive
reasons presented by the school or district.
Regulatory Implementing Order
104 Education Profiles for the Schools,
Districts and the State
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks the consent of the
State Board of Education to adopt a new regulation 104
Education Profiles for Schools, Districts and the State. The
regulation is required due to changes in state and federal
statutes concerning school, district and State accountability
for student performance. The regulation continues the
mandates for the development of profiles for schools
districts and the State and includes the information that must
appear in each type of profile. Other additional information
can be added. The regulation also defines when and how the
profiles will be published.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on April 21,
2003, in the form hereto attached as Exhibit A. No
comments were received.
II. Findings of Facts
The Secretary finds that it is appropriate to adopt this
regulation in order to meet the requirements of recently
amended state and federal statutes.
III. Decision to Adopt the Regulation
For the foregoing reasons, the Secretary concludes that
it is appropriate to adopt the regulation. Therefore, pursuant
to 14 Del. C. §122, the regulation attached hereto as Exhibit
"B" is hereby adopted. Pursuant to the provision of 14 Del.
C. §122(e), the regulation hereby adopted shall be in effect
for a period of five years from the effective date of this order
as set forth in Section V. below.
IV. Text and Citation
The text of the regulation adopted hereby shall be in the
form attached hereto as Exhibit "B", and said regulation
shall be cited as 14 DE Admin. Code § 104 in the
Regulations of the Department of Education.
V. Effective Date of Order
The actions hereinabove referred to were taken by the
Secretary pursuant to 14 Del. C. §122 on June 19, 2003. The
effective date of this Order shall be ten (10) days from the
date this Order is published in the Delaware Register of
Regulations.
IT IS SO ORDERED the 19th day of June 2003.
Department of Education
Valerie A. Woodruff, Secretary of Education
Approved this 19th day of June, 2003
State Board of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Mary B. Graham, Esquire
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
66 FINAL REGULATIONS
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
104 Education Profiles for Schools, Districts, and the
State
1.0 Education Profiles: All public schools, including charter
schools, reorganized or vocational-technical school districts
and the State shall issue Delaware Public Education Profiles
on the state of Delaware's public school system as required
by 14 Del.C. §124A. The profiles shall be referred to as
school, district, and state Profiles respectively. Each profile
shall contain, but need not be limited to, the following
information, aggregated at the appropriate level (school,
district or state), unless otherwise noted:
1.1 Information on student achievement at each
performance level on the state reading, writing,
mathematics, science, and social studies academic
assessments. Such information shall be disaggregated by
race, ethnicity, gender, disability status, migrant status,
English proficiency, and status as economically
disadvantaged except that such disaggregation shall not be
required in a case in which the number of students in a
category is less than fifteen (15).
1.2 The most recent 2-year trend in student
achievement in each of the five content areas [as assessed by
the DSTP], and for each grade level the assessments are
administered;
1.3 The percentage of students not tested in reading/
language arts and mathematics disaggregated by the student
subgroups as defined in 1.9, except that such disaggregation
shall not be required in a case in which the number of
students in a category is less than fifteen (15).
1.4 Information that provides a comparison between
the actual achievement levels of each student subgroup
meeting proficiency and those that have not met proficiency,
as defined in 14 DE Admin. Code 103, 1.4 and the state's
annual measurable objectives for each such group of
students in the reading/language arts and mathematics
academic assessments;
1.5 Aggregate information of the percent proficient on
the combined scores of the science and social studies
academic assessments for elementary and middle schools,
used as the other indicator to determine Annual Yearly
Progress (AYP) of students in achieving the state academic
standards disaggregated by student subgroups. Such
disaggregation shall not be required in a case in which the
number of students is less than fifteen (15).
1.6 For secondary schools only, graduation rate [is]
defined as the number of students enrolled in the school in
the ninth grade and [graduation who graduate] with a
diploma four years later[, excluding students who earn a
GED certificate, divided by the same number plus those
who have dropped out during the same four year period,]
disaggregated by student subgroups. Such disaggregation
shall not be required in a case in which the number of
students is less than fifteen (15).
1.7 Information on the performance of the school,
district, or state regarding making adequate yearly progress,
including the number and names of each school identified as
Under School Improvement.
1.8 Information regarding the professional
qualifications of teachers in the school, district and state, the
percentage of such teachers teaching with emergency or
provisional credentials, and the percentage of classes in the
state not taught by highly qualified teachers, in the aggregate
and disaggregated by high-poverty compared to low-poverty
schools which means schools in the top quartile of poverty
and the bottom quartile of poverty in the State;
1.9 Information pertaining to the AYP status and
accountability ratings;
1.10 Information pertaining to school safety and
discipline and student attendance;
1.11 Information pertaining to school district
administrator-student ratios, school teacher-student ratios
and other staffing ratios;
1.12 Information pertaining to pupil and staff
demographics;
1.13 Information pertaining to school district
revenues, expenditures, tax rates and wealth (district profile
only);
1.14 Information pertaining to school curricular
offerings (school profile only);
1.15 Information pertaining to parent and
community involvement in the school and school district;
1.16 Examples of exemplary programs, successful
teaching, school climate or disciplinary strategies and other
developments (only in school profile); and
1.17 Other items from time to time that may be
required by the federal Elementary and Secondary Education
Act.
2.0 Publishing of Profiles: The profiles will be published,
subject to an annual appropriation in the annual state budget
act, at the expense of the state. School and districts-specific
data shall be submitted, in the format requested, to the
Department in the time frame delineated in the Data
Acquisition Calendar. The State shall have the profiles
available on the Department of Education website no later
than August 15, 2003 and on or before August 1 of each
subsequent year.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 67
Regulatory Implementing Order
608 Unsafe School Choice Option for Students in
Persistently Dangerous Schools and for Students Who
Have been Victims of a Violent Felony
I. Summary of the Evidence and Information Submitted
The Secretary of Education intends to adopt a new
regulation 608 Unsafe School Choice Option for Students in
Persistently Dangerous Schools and for Students who Have
Been Victims of a Violent Felony. The Unsafe School
Choice Option (USCO) (section 9532 of the Elementary and
Secondary Education Act (SEA) of 1965, as amended by the
No Child Left Behind Act of 2001) requires that a State
Education Agency establish a State USCO policy in order to
receive funding under ESEA. The regulation identifies the
conditions that must exist in order to identify persistently
dangerous schools, defines a violent crime and other relevant
terms and identifies the responsibilities of the local school
districts and charter schools in implementing the federal
statute.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on April 21,
2003, in the form hereto attached as Exhibit A. The State
Board of Education recommended changing "to the extent
possible" in 3.0 to "provided such an option exists" and
removing "to the extent possible" from 4.0 in order to add
clarity to these statements. These changes were made.
II. Findings of Facts
The Secretary finds that it is appropriate to adopt this
regulation because the Unsafe School Choice Option
(USCO) (section 9532 of the Elementary and Secondary
Education Act (SEA) of 1965, as amended by the No Child
Left Behind Act of 2001) requires that a State Education
Agency establish a State USCO policy in order to receive
funding under ESEA.
III. Decision to Adopt the Regulation
For the foregoing reasons, the Secretary concludes that
it is appropriate to adopt the regulation. Therefore, pursuant
to 14 Del. C. §122, the regulation attached hereto as Exhibit
"B" is hereby adopted. Pursuant to the provision of 14 Del.
C. §122(e), the regulation hereby adopted shall be in effect
for a period of five years from the effective date of this order
as set forth in SectionV. below.
IV. Text and Citation
The text of the regulation adopted hereby shall be in the
form attached hereto as Exhibit "B", and said regulation
shall be cited as 14 DE Admin. Code §608 in the
Regulations of the Department of Education.
V. Effective Date of Order
The actions hereinabove referred to were taken by the
Secretary pursuant to 14 Del. C. §122 on June 5, 2003. The
effective date of this Order shall be ten (10) days from the
date this Order is published in the Delaware Register of
Regulations.
IT IS SO ORDERED the 5th day of June 2003.
Department of Education
Valerie A. Woodruff, Secretary of Education
Approved this 5th day of June, 2003
608 Unsafe School Choice Option for Students in
Persistently Dangerous Schools and for Students who
Have Been Victims of a Violent Felony
The Elementary and Secondary Education Act (ESEA)
of 1965, as amended by the No Child Left Behind Act of
2001), requires that a State Education Agency establish a
State Unsafe School Choice Option policy in order to receive
funding under ESEA.
1.0 Definitions:
In this regulation, the following terms shall have the
meanings indicated below:
ACrime@ shall have the same meaning as provided
in 14 Del.C. §4112.
AEnrolled students@ unless the context indicates
otherwise, means all students included in the Delaware
Student Information System (DELSIS) report for the year of
the data collection.
AFirearm@ means handgun, rifle, shotgun, or other
type of firearm as that term is defined in the federal Gun Free
Schools Zone Act at 18 U.S.C.A. §921.
AFiscal year@ means the period of July 1 through
June 30. AGun free school=s violation@ means the prohibited
bringing to school, or possession while in school of a firearm
by a student.
APersistently Dangerous School@ means a school
that has five or more unsafe incidents for every one hundred
students enrolled for three consecutive fiscal years.
"Safe school" means a school in the same school
district that is not currently identified by the Department of
Education as a persistently dangerous school.
"School" means any public school including
charter schools. ASchool property@ shall have the same
meaning as provided in 14 Del.C. §4112 (a)(9).
ASuspension@ means, for the purpose of this
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
68 FINAL REGULATIONS
regulation, the external removal of a student from the
general school population.
ATerroristic threatening@ shall have the same
meaning as provided in 11 Del.C. §621.
"Unsafe incidents" means any of the following:
The school suspended or expelled a student for
a gun-free schools violation; or
The school suspended or expelled a student for
a crime committed on school property which is required to
be reported under 14 Del.C. §4112; or
The school reported a crime committed by a
non-student on school property that is required to be reported
under 14 Del.C. §4112; or
The school suspended or expelled a student for
terroristic threatening as that term is defined in 11 Del.C.
§621.
AViolent felony@ shall have the same meaning as
provided in 11 Del.C. §4201(c). (A list of these crimes can
be found in the Delaware Guidelines for the Development of
the Unsafe School Choice Option.)
2.0 Beginning in July 2003, the Department of Education
shall identify each persistently dangerous school using the
data reported to it pursuant to the provisions of 14 Del.C.
§4112 and 14 DE Admin. Code 601.
2.1 Notwithstanding any provision herein to the
contrary, any year that a school fails to comply with the
reporting mandates, as set forth in 2.0 above, to the
Delaware Department of Education or to the appropriate
police agency as set forth above, the Department of
Education will consider the school as if it otherwise met the
criteria to be classified as a persistently dangerous school for
that year until such time as it may be determined, in the sole
discretion of the Department, that the school has met such
reporting requirements.
2.2 A school identified as persistently dangerous will
retain that designation for the entire fiscal year.
3.0 A student attending a persistently dangerous school
shall be allowed to choice to a safe school in the same school
district, including a charter school; [to the extent possible
provided such an option exists in the district], the student
should be permitted to transfer to a school that is making
adequate yearly progress and has not been identified as being
in school improvement, corrective action or restructuring.
3.1 Each public school district having one or more
persistently dangerous schools and any charter school
identified as a persistently dangerous school shall develop a
plan and time line that describes the process for notifying
parents of the school's status and for relocating any student
who exercises the right to choice to a safe school. The plan
shall also describe the corrective actions that will be
implemented. The plan shall be forwarded to the
Department of Education no later than September 15th of the
year that the school is identified.
4.0 A student who is the victim of a violent felony while in
or on the grounds of a school in which the student is enrolled
shall be allowed to choice to a safe school in the same school
district, including a charter school; [to the extent possible,]
the student should be permitted to transfer to a school that is
making adequate yearly progress and has not been identified
as being in school improvement, corrective action or
restructuring.
4.1 All school districts and charter schools shall
establish a plan that describes their policies and procedures
for providing school choice options to a student who is the
victim of a violent felony, including the process for notifying
parents. These plans shall be forwarded to the Department
of Education by September 15, 2003.
Regulatory Implementing Order
811 School Health Record Keeping Requirements
815 Physical Examinations and Screening
817 Administration of Medications and Treatments
I. Summary of the Evidence and Information Submitted
The Secretary of Education intends to repeal the
following twelve (12) regulations:
801 Delaware Emergency Treatment Card
802 Delaware School Health Record
803 Daily Log
806 Physical Examinations
807 Vision Screening
808 Hearing Screening
809 Orthopedic Screening
810 Accident Reporting
826 Administration of Prescription Medications
827 Administration of Non-Prescription
Medications
828 Assistance with Medications on Field Trips
829 The School Nurse and the Child with Special
Health Needs
and to adopt the following three (3) new regulations:
811 School Health Record Keeping Requirements
815 Physical Examinations and Screening
817 Administration of Medications and Treatments
In the new regulations the titles and numbers are new
and the terms "Relative Caregiver", "students 18 years of
age and older"and "or an unaccompanied homeless youth (as
defined by 42 USC 11434a") have been added in most cases
when the parent/guardian reference is used to comply with
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FINAL REGULATIONS 69
state and federal laws. In addition, much of the wording has
been edited for clarity.
In regulation 811 School Health Record Keeping
Requirements, the use of the term "Daily Log" has been
discontinued, in an effort to move toward a system of
completely computerized individual health records rather
than a log where all students are recorded on the same record
sheet.
In regulation 815 Physical Examinations and Screening,
a statement was added to require that students have their
physical examination within two years of entry into the
school system.
Orthopedic Screening has been changed to "screening
for posture and gait" too more accurately represent what is
actually done. Current screening is not a complete
orthopedic screening and the use of the term Orthopedic is
misleading for parents. The revisions in the new regulations
also change the grades for the vision and hearing screening
from grades 3, 5, 8 and 10 to grades 2, 4, 7 and grades 9 or
10 beginning with school year 2004-2005 and moves the
date for completing this process from December 15th to
January 15th of the school year. The grade change will help
to identify vision or hearing problems a year before the state
assessment is administered to allow time for appropriate
follow up. The change to January 15th allows for additional
time to complete the process.
In regulation 817 Administration of Medications and
Treatments, the concept of the administration of treatments
has been added to the administration of medications. In
addition the administration of treatments includes a
reference to the specialized treatments required for some
students. Section 4.0 has been added to assure that the
Individual Education Program (IEP) Team will include the
school nurse when a student requires significant medical and
/or nursing interventions. Regulation 828 Administration of
Medications on Field Trips has been eliminated as a separate
regulation and is included in the new regulation 817 as it is
part of the whole concept of the administration of
medications during school hours.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on April 21,
2003, in the form hereto attached as Exhibit A. No
comments were received.
II. Findings of Facts
The Secretary finds that it is appropriate to repeal the
twelve (12) existing regulations and adopt three (3) new
regulations to consolidate the twelve regulations into three
regulations in order to add clarity and focus to the
regulations. The terminology has been updated and the
regulations now more accurately reflect current practice.
III. Decision to Repeal Twelve Regulations and Adopt
Three New Regulations
For the foregoing reasons, the Secretary concludes that
it is appropriate to repeal twelve (12) regulations and adopt
three (3) new regulations. Therefore, pursuant to 14 Del. C.
§122, the Twelve (12) regulations attached hereto as Exhibit
"B" are hereby repealed and the three (3) new regulations
are adopted. Pursuant to the provision of 14 Del. C. §122(e),
the regulations hereby repealed shall be removed from the
Regulations of the Department of Education and the three (3)
new regulations shall be in effect for a period of five years
from the effective date of this order as set forth in SectionV.
below.
IV. Text and Citation
The text of the regulations adopted hereby shall be in
the form attached hereto as Exhibit "B", and said regulations
shall be cited as 14 DE Admin. Code § 811, § 815 and § 817
in the Regulations of the Department of Education.
Regulations cited as 14 DE. Admin. Code § 801, § 802, §
803, § 806, § 807, § 808, § 809, § 810, § 826, § 827, § 828,
and § 829 shall be removed from the Regulations of the
Department of Education.
V. Effective Date of Order
The actions hereinabove referred to were taken by the
Secretary pursuant to 14 Del. C. §122 on June 5, 2003. The
effective date of this Order shall be ten (10) days from the
date this Order is published in the Delaware Register of
Regulations.
IT IS SO ORDERED the 5th day of June 2003.
Department of Education
Valerie A. Woodruff, Secretary of Education
801 Delaware Emergency Treatment Card
1.0 A Delaware Emergency Treatment Card shall be on file
for every child enrolled in the Delaware Public Education
system and the card must contain at a minimum, requests for
the following information: student's name, birth date, school
district, school, grade, homeroom or teacher, home address,
home phone, mother/guardian's name and/or father/
guardian's name, their place of employment and work
phone, two other names, addresses and phone numbers for
times when the parent or guardian can not be reached, family
physician, name and phone, family dentist, name and phone,
student's medical problems and allergies, the student's
medical insurance and if possible the parent/guardian's
signature. This information may be shared on a need to
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
70 FINAL REGULATIONS
know basis.
See 1 DE Reg. 1799 (5/1/98)
802 Delaware School Health Record
1.0 The "School Health Record" is confidential and shall be
stored so that only duly authorized persons have access to it.
2.0 A "School Health Record" shall be prepared for each
school child. When a child is promoted to another school in
the district or transfers to another school in or out of state
this shall accompany the other school records.
3.0 The health record will serve for the duration of the
child's schooling. The school nurse shall use the "Student
Health History Update" to keep health records current.
4.0 The "School Health Record" shall remain in the general
school file or nurse's file during the pupil's attendance in
school. The school nurse shall destroy any duplicate or
partial health record after entries have been transferred to the
official record so that there is only one correct and up-to-date
record.
5.0 No health or psychological data shall be filmed with
school academic records.
6.0 All student health records shall be retained at the school
for two years after termination (graduation, drop-out).
7.0 All health records shall be transferred to the Delaware
Public Archives which will retain the records for a total of 25
years.
See 1 DE Reg. 1798 (5/1/98)
803 Daily Log
1.0 The school nurse shall maintain a daily log which
includes at a minimum:
1.1 School name
1.2 Three point date
1.3 Student's first and last name
1.4 Time of arrival and departure
1.5 Presenting complaint
1.6 Nurse's assessment and plan
1.7 Disposition (return to class, sent home, etc.)
1.8 Parent contact, if appropriate
1.9 Complete nurse's signature
See 1 DE Reg. 1800 (5/1/98)
806 Physical Examinations
1.0 All pupils upon entrance to the Delaware school system
shall have had a physical examination within by a licensed
medical physician, nurse practitioner or physician's
assistant. The physical examination form can be given to the
parent or guardian if requested.
1.1 New enterers have 14 school days to comply with
the regulation before being excluded from school. A
documented appointment with a licensed provider as stated
above will defer exclusion.
1.2 All Students shall have a physical examination each
year before participating in interscholastic sports (see
regulation 1051, section 8.0 and regulation 1052, section
8.0).
1.3 Those selected students whose health status
suggests further follow-up as a result of observations and/or
conferences by the teacher and the school nurse shall have an
additional physical examination or medical consultation.
1.4 Children of Christian Scientist parents may request
exemption from physical exams by having their parents
obtain the proper form from the "Committee on Publication
for Delaware" which is responsible for such matters. The
school should not furnish these forms.
1.5 The school nurse shall record all findings on the
School Health Record.
807 Vision Screening
1.0 All children in kindergarten or grade 1 and in grades 3,
5, 8, and 10 shall receive a vision screening by December
15th of the current school year.
1.1 Students new to the school system, teacher
referrals, those students considered for special education
placement and driver education students shall have a vision
screening.
1.2 The school nurse shall record the results on the
School Health Record.
1.3 The school nurse shall notify parents/guardians if
the child has a suspected vision problem.
See 1 DE Reg. 1797 (5/1/98)
808 Hearing Screening
1.0 All children in kindergarten or grade 1 and in grades 3,
5, 8 and in grade 10 or 11 shall receive a hearing screening
by December 15th of the current school year.
1.1 Students new to the school system and those
students considered for special education placement shall
have a hearing screening.
1.2 Should any child fail the screening, a repeat
screening shall be done within two (2) weeks of the initial
screening.
1.3 The school nurse shall record the test results on the
School Health Record.
1.4 The school nurse shall notify the parents/guardian
that the child has failed the hearing screening and may have
a hearing loss.
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FINAL REGULATIONS 71
See 1 DE Reg. 1797 (5/1/98)
809 Orthopedic Screening
1.0 All pupils in grades 5 through 9 shall have an orthopedic
screening by December 15th of each year.
1.1 The school nurse shall notify the parents/guardian if
a suspected deviation has been detected.
1.2 The school nurse shall record the findings on the
school health record.
See 1 DE Reg. 1813 (5/1/98)
810 Accident Reporting
1.0 In addition to entering an accident incident in daily log,
the school nurse shall make a written report on the
appropriate form to the district office in the following
circumstances:
1.1 The school nurse has referred the student for
medical evaluation, regardless of whether the parent/
guardian followed through on that request.
1.2 The student has missed more than one-half day due
to the accident.
See 1 DE Reg. 1801 (5/1/98)
826 Administration of Prescription Medications
1.0 Medications prescribed by a licensed health care
provider may be administered to students by the school nurse
under the following conditions:
1.1 Request received from the parent/guardian.
1.2 The medication is brought/sent to school in the
original container that is properly labeled with the student's
name; the name of the medication; time; dosage; how it is to
be administered; the physician's name; name of pharmacy
and phone number; and a current date of the prescription.
1.3 Any allergies are noted.
1.4 All controlled substances are counted and
reconciled at least once a month and kept under double lock.
1.5 The daily log or special medication record shows
the student's name, time, and date of administration.
1.6 All long-term medications shall be preauthorized
each year.
See 1 DE Reg. 1802 (5/1/98)
827 Administration of Nonprescription Medications
1.0 Nonprescription medications may be administered by
the school nurse to students. The school nurse shall do the
following:
1.1 Assess the particular complaint and symptoms to
determine if other measures can be used before medication is
administered.
1.2 Look for a record of all allergies, especially to
medications, on the student's school health record.
1.3 Have the permission of the parent or guardian to
administer any medications.
1.4 Seek medical attention if the symptoms or
conditions persist.
1.5 Record the student's name, name of medicine,
dosage and time on the daily log.
See 1 DE Reg. 1803 (5/1/98)
828 Assistance With Medications on Field Trips
1.0 Definitions
"Assist a student with medication" means assisting a
student in the self-administration of a medication, provided
that the medication is in a properly labeled container as
hereinafter provided. Assistance may include holding the
medication container for the student, assisting with the
opening of the container, and assisting the student in selfadministering
the medication. Lay assistants shall not assist
with injections. The one exception is with emergency
medications where standard emergency procedures prevail
in lifesaving circumstances.
"Field trip" means any off-campus, school-sponsored
activity.
"Medication" means a drug taken orally, by inhalation,
or applied topically, and which is either prescribed for a
student by a physician or is an over-the-counter drug which a
parent or guardian has authorized a student to use.
"Paraprofessionals" mean teaching assistants or aides.
2.0 Teachers, administrators and paraprofessionals
employed by a student's local school district are authorized
to assist a student with medication on a field trip subject to
the following provisions:
2.1 Assistance with medication shall not be provided
without the prior written request or consent of a parent or
guardian. Said written request or consent shall contain clear
instructions including: the student's name; the name of the
medication; the dose; the time of administration; and the
method of administration. At least one copy of said written
request or consent shall be in the possession of the person
assisting a student with medication on a field trip.
2.2 The medication shall be in a container which is
clearly labeled with the student's name, the name of the
medication, the dose, the time of administration, and the
method of administration. If the medication has been
prescribed by a physician, it shall be in a container which
meets United States Pharmacopoeia/National Formulary
standards and, in addition to the information otherwise
required by this section, shall bear the name of the
prescribing physician, and the name and telephone number
of the dispensing pharmacy.
2.3 A registered nurse employed by the school district
in which the student is enrolled shall determine which
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
72 FINAL REGULATIONS
teachers, administrators and paraprofessionals are qualified
to safely assist a student with medication. Each such person
shall complete a Board of Nursing approved training course
developed by the Delaware Department of Education,
pursuant to 24 Del.C. §1921. Said nurse shall complete
instructor training as designated by the Department of
Education and shall submit a list of successful staff
participants to the Department of Education. No person shall
assist a student with medication without written
acknowledgment that he/she has completed the course and
that he/she understands the same, and will abide by the safe
practices and procedures set forth therein.
2.4 Each school district shall maintain a record of all
students receiving assistance with medication pursuant to
this regulation. Said record shall contain the student's name,
the name of the medication, the dose, the time of
administration, the method of administration, and the name
of the person assisting.
2.5 Except for a school nurse, no employee of a school
district shall be compelled to assist a student with
medication. Nothing contained herein shall be interpreted to
otherwise relieve a school district of its obligation to staff
schools with certified school nurses.
829 The School Nurse and the Child with Special Health
Needs
1.0 The school nurse, as a member of the evaluation team
shall:
1.1 Assist in identifying candidates for placement in a
special program.
1.2 Conduct the initial health evaluation and parent a
parent/guardian/ conference.
1.3 Assist in obtaining an in depth health and
developmental history and home environment assessment.
1.4 Provide and interpret all pertinent information
including results of recent physical assessments.
1.5 Develop the individual health maintenance plan
with the student/parent if possible.
1.6 Provide the evaluation team with the health
information necessary to develop the health component of
the individual education plan, IEP.
1.7 Periodically confer with the student, parent and
faculty to revise the health maintenance plan.
1.8 Help the student or the student's parent or guardian
to access appropriate community resources.
1.9 Follow up on medical recommendations and report
to teachers and appropriate personnel.
1.10 Provide and/or supervise nursing treatment,
medications, and specialized health procedures with the
following conditions:
1.10.1 A written request shall be obtained from
the parent for the procedure.
1.10.2 A written authorization from the child's
physician shall be on file.
1.10.3 Each change in the request from the parent
or physician requires reauthorization. All requests shall be
re-authorized each year.
1.10.4 A daily treatment log that includes child's
name, date and time shall be kept on all medications and
treatment administered with any reactions or comments
noted.
811 School Health Record Keeping Requirements
1.0 Emergency Treatment Card
1.1 An Emergency Treatment Card shall be on file for
each public school student. The card shall contain general
emergency procedures for the care of a student when the
student becomes sick or injured at school. The card shall
contain the student's name, birth date, school district, school,
grade, home room or teacher, home address, home telephone
and the name, place of employment and work telephone of
the parent/guardian[/or Relative] Caregiver. The card shall
also contain two other names, addresses and phone numbers
of individuals who can be contacted at times when the
parent/ guardian or [Relative] Caregiver can not be reached.
The name and telephone number of the family physician and
family dentist, any medical conditions and/or allergies the
student has and the student's medical insurance shall be on
the Emergency Treatment Card.
The information on the Emergency Treatment Card may
be shared only on a need to know basis.
The parent/guardian [/,Relative] Caregiver or the
or older [,or an unaccompanied student [(] if 18 years
homeless youth (as defined by 42 USC 11434a))] shall sign
the card to assure they understand the purpose of the card
and acknowledge the accuracy of the information.
2.0 School Health Record
2.1 A School Health Record shall be prepared and
updated for each public school student. This record is
confidential and shall be protected so that only duly
authorized persons have access to it.
2.2 When a student transfers to another school in the
district or transfers to another school in or out of state, the
School Health Record shall be forwarded with the student's
other school records.
2.3 The School Health Record shall be maintained for
the duration of the student's schooling. The school nurse
shall use the Student Health History Update form to keep
health records current.
2.4 The School Health Record shall remain in the
general school file or nurse's file during the student's
attendance in school. The school nurse shall destroy any
duplicate or partial health record after entries have been
transferred to the official record so that there is only one
correct and up-to-date record.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 73
Non-regulatory note: also see Department of Education
Regulation 250 Procedures Related to the Collection,
Maintenance and Disclosure of Student Data and the
Delaware Public Archives Document Delaware School
Districts General Records Retention Schedule.
2.5 The school nurse shall document any nursing care
provided including: the school name, a three point date, the
person's (student, staff or visitor) first and last name, the
time of arrival and departure, the presenting complaint, the
nurse's assessment intervention plan and outcome, the
disposition of the situation, the parent/other contact, if
appropriate, and the nurse's complete signature.
2.5.1 Accident Reporting: In addition to
documenting the care given at the time of an accident, the
school nurse shall also complete the Student Accident Report
Form if the school nurse has referred the student for a
medical evaluation regardless of whether the parent/guardian
[/ , Relative] Caregiver or student [ if 18 years or older[, or (]
an unaccompanied homeless youth (as defined by 42 USC
11434a))] followed through on that request and/or if the
student missed more than one-half day due to the accident.
3.0 The school nurse shall submit the Department of
Education form, Summary of School Health Services for his
or her building to the local school district or charter school
designee. The district or charter school shall submit the
summary of all school health services to the Department by
June 30st of each school year.
815 Physical Examinations and Screening
1.0 Physical Examinations
1.1 All public school students shall have a physical
examination that has been administered by a licensed
medical physician, nurse practitioner or physician's
assistant. The physical examination shall have been done
within the two years prior to entry into school. Within
fourteen calendar days after notification of the requirement
for a physical examination, new enterers shall have received
a physical examination or shall have a documented
appointment with a licensed health care provider for a
physical examination.
1.1.1 The requirement for the physical
examination may be waived for students whose parent[/ or
legal] guardian[, Relative Caregiver, or the student [(] if
18 years or older, or an unaccompanied homeless youth
(as defined by 42 USC 11434a)] presents a written
declaration acknowledged before a notary public, that
because of individual religious beliefs, they reject the
concept of physical examinations.
1.1.2 The school nurse shall record all findings
on the School Health Record.
Non regulatory note: [R r]egulations 1051 DIAA Senior
High School Interscholastic Athletic[s Association] and
1052 DIAA Junior High/Middle School Interscholastic
Athletic[s Association for address] physical examination
requirements associated with participation in sports.
2.0 Screening
2.1 Vision and Hearing Screening
2.1.1 Beginning with the school year 2004-
2005, each public school student in kindergarten and in
grades 2, 4, 7 and grades 9 or 10 shall receive a vision and a
hearing screening by January 15th.
2.1.1.1 In addition to the screening
requirements in 2.1.1, screening shall also be provided to
new enterers, students referred by a teacher or an
administrator, and students considered for special education.
2.1.1.1.1Driver education students shall
have a vision screening within a year prior to their in-car
driving hours.
2.1.2 The school nurse shall record the results
on the School Health Record and shall notify the parent/
guardian[,/ Relative] Caregiver or the student (if 18 years or
older[, or an unaccompanied homeless youth (as defined
by 42 USC 11434a))] if [the student has there is] a
suspected problem.
2.2 Postural and Gait Screening
2.2.1 Each public school student in grades 5
through 9 shall receive a postural and gait screening by
December 15th.
2.2.2 The school nurse shall record the findings
on the school health record and shall notify the parents/
guardian[,/ Relative] Caregiver, or the student [(] if 18 years
or older[, or an unaccompanied homeless youth (as
defined by 42 USC 11434a))] if a suspected deviation has
been detected.
817 Administration of Medications and Treatments
1.0 Medications, in their original container, and treatments
may be administered to a public school student by the school
nurse when a written request to administer the medication or
treatment is on file from the parent/guardian[,/Relative]
Caregiver or the student [(] if 18 years or older[, or an
unaccompanied homeless youth (as defined by 42 USC
The school nurse shall check the student health
records and history for contra indications and all allergies,
especially to the medications, and shall provide immediate
medical attention if an allergic reaction is observed or make
a referral if symptoms/conditions persist. The school nurse
shall also document the student's name, the name of
medication and/or treatment administered, the date and time
it was administered and the dosage if medication was
administered.
11434a))].
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
74 FINAL REGULATIONS
2.0 Any prescribed medication or treatment administered to
a student, in addition to the requirements in 1.0, shall be
prescribed by a licensed health care provider. Prescription
medication shall be properly labeled with the student's
name; the licensed health care provider's name; the name of
the medication; the dosage; how and when it is to be
administered; the name and phone number of the pharmacy
and the current date of the prescription. The medication
shall be in a container which meets United States
Pharmacopoeia/National Formulary standards.
Treatment, including, specialized health procedures,
shall be signed by a licensed health care provider with
directions on how and when to administer.
2.1 The prescription and the medication shall be current
and long term prescriptions shall be re-authorized at least
once a year.
2.2 All medications classified as controlled substances
shall be counted and reconciled each month by the school
nurse and kept under double lock.
3.0 Non-prescription medications may be given by the
school nurse after the nurse assesses the complaint and the
symptoms to determine if other interventions can be used
before medication is administered and if all requirements in
1.0 have been met.
4.0 For a student who requires significant medical and/or
nursing interventions, the Individual Education Program
(IEP) team shall include the school nurse.
5.0 Assistance With Medications on Field Trips
5.1 Definitions
"Assist a student with medication" means assisting a
student in the self-administration of a medication, provided
that the medication is in a properly labeled container as
hereinafter provided. Assistance may include holding the
medication container for the student, assisting with the
opening of the container, and assisting the student in selfadministering
the medication. Lay assistants shall not assist
with injections. The one exception is with emergency
medications where standard emergency procedures prevail
in lifesaving circumstances.
"Field trip" means any off-campus, school-sponsored
activity.
"Medication" means a drug taken orally, by inhalation,
or applied topically, and which is either prescribed for a
student by a physician or is an over-the-counter drug which a
parent or guardian has authorized a student to use.
"Paraprofessionals" mean teaching assistants or aides.
5.2 Teachers, administrators and paraprofessionals
employed by a student's local school district are authorized
to assist a student with medication on a field trip subject to
the following provisions:
5.2.1 Assistance with medication shall not be
provided without the prior written request or consent of a
parent[/]guardian[, or Relative] Caregiver (or [the student
[(] if 18 years or older[, or an unaccompanied homeless
youth (as defined by 42 USC 11434a)]. Said written
request or consent shall contain clear instructions including:
the student's name; the name of the medication; the dose; the
time of administration; and the method of administration. At
least one copy of said written request or consent shall be in
the possession of the person assisting a student with
medication on a field trip.
5.2.2 The prescribed medication, in addition to
the requirements in 1.0, shall be prescribed by a licenced
health care provider. The medication shall be properly
labeled with the students' name; the licensed health care
provider's name; the name of the medication; the dosage;
how and when it is to be administered; the name and phone
number of the pharmacy and the current date of the
prescription. The medication shall be in a container which
meets United States Pharmacopoeia/National Formulary
standards.
5.2.3 A registered nurse employed by the school
district in which the student is enrolled shall determine
which teachers, administrators and paraprofessionals are
qualified to safely assist a student with medication. In order
to be qualified, each such person shall complete a Board of
Nursing approved training course developed by the
Delaware Department of Education, pursuant to 24 Del.C.
§1921. Said nurse shall complete instructor training as
designated by the Department of Education and shall submit
a list of successful staff participants to the Department of
Education. No person shall assist a student with medication
without written acknowledgment that he/she has completed
the course and that he/she understands the same, and will
abide by the safe practices and procedures set forth therein.
5.2.4 Each school district shall maintain a
record of all students receiving assistance with medication
pursuant to this regulation. Said record shall contain the
student's name, the name of the medication, the dose, the
time of administration, the method of administration, and the
name of the person assisting.
5.2.5 Except for a school nurse, no employee of
a school district shall be compelled to assist a student with
medication. Nothing contained herein shall be interpreted to
otherwise relieve a school district of its obligation to staff
schools with certified school nurses.
Non-regulatory note: Regulation 876 Possession, Use
and Distribution of Drugs and Alcohol [Section 3.12]
addresses student self administration of a prescribed
asthmatic quick relief inhaler.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 75
PROFESSIONAL STANDARDS BOARD
Regulatory Implementing Order
Regulation 1593 Delaware Professional Teaching
Standards
I. Summary Of The Evidence And Information
Submitted
The Professional Standards Board, acting in cooperation
and consultation with the Department of Education, seeks
the consent of the State Board of Education to amend
regulation 393 Delaware Professional Teaching Standards of
the Regulations of the Department of Education. The
proposed amendments align the Delaware Professional
Teaching Standards with the Model Standards for Licensing
General and Special Education Teachers of Students with
Disabilities developed by the Interstate New Teacher
Assessment and Support consortium, a program of the
Council of Chief State School Officers. The Delaware
Professional Teaching Standards enacted in 1998 were
aligned with the INTASC Model Standards for Teachers.
The 2001 INTASC Model Standards for Licensing general
and Special Education Teachers of Students with Disabilities
reflect current research and changes resulting from the last
reauthorization of IDEA. The amended regulation will also
be renumbered to reflect its movement to the Professional
Standards Board section of the regulations. The regulation
concerns standards for teachers.
Notice of the proposed adoption of the regulation was
published in the News Journal and the Delaware State News
on April 18, 2003, in the form hereto attached as Exhibit
"A". The notice invited written comments. No comments
were received.
II. Findings Of Facts
The Professional Standards Board and the State Board
of Education find that it is appropriate to amend this
regulation to reflect current research and changes resulting
from the last reauthorization of IDEA. The regulation
concerns standards for teachers.
III. Decision To Adopt The Regulation
For the foregoing reasons, the Professional Standards
Board and the State Board of Education conclude that it is
appropriate to adopt the regulation. Therefore, pursuant to
14 Del. C. § 1205(b), the regulation attached hereto as
Exhibit "B" is hereby adopted. Pursuant to the provision of
14 Del. C. § 122(e), the regulation hereby adopted shall be in
effect for a period of five years from the effective date of this
order as set forth in SectionV. below.
IV. Text And Citation
The text of the regulation adopted shall be in the form
attached hereto as Exhibit "B", and said regulation shall be
cited as 14 DE Admin. Code § 1593 in the Regulations of the
Department of Education.
V. Effective Date Of Order
The effective date of this Order shall be ten (10) days
from the date this Order is published in the Delaware
Register of Regulations.
Approved By The Professional Standards Board The
12th Day Of June, 2003.
Charles Michels, Chair Mary Ellen Kotz, Vice Chair
Patricia Clements Barbara Grogg
Michele Hazeur-Porter Sherie Hudson
Tony Marchio Mary Mirabeau
John Pallace Joanne Reihm
Harold Roberts Karen Schilling Ross
Teresa Schooley Carol Vukelich
For Implementation By The Department Of Education:
Valerie A. Woodruff, Secretary of Education
IT IS SO ORDERED This 19th Day Of June, 2003
State Board Of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
393 1593 Delaware Professional Teaching Standards
1.0 Content: The Delaware Professional Teaching
Standards establish a common set of knowledge, skills, and
attributes expected of Delaware's teachers. In accordance
with 14 Del. C. § 1205, this regulation shall be applied to all
teachers employed within the public schools and charter
schools of the State of Delaware.
2.0 Definitions: The following words and terms, when used
in this regulation, shall have the following meaning unless
the context clearly indicates otherwise:
"Alignment of assessment" means Tthe ability to
determine what students know and are able to do with
respect to the curriculum is dependent upon how well the
assessment methods and tasks are aligned with, or in
agreement with, the curriculum. Assessments should be
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
76 FINAL REGULATIONS
aligned with the content of the curriculum, consistent with
the instructional approaches, and address the range of topics
as weighted in the curriculum.
"Authentic experiences" means Tthe use of
performances, or "authentic activities", such as writing a
letter, solving a real-world mathematics problem, or
investigating a question in science, as a way to teach and to
assess student learning.
"Culturally and/or linquistically diverse" means
Sstudents and families who come to schools with cultural
and/or language backgrounds that differ from the
predominant experience of monolingual English speakers.
The term calls attention to the range of geographic
background, cultural heritage, and level of English
proficiency found among students in schools.
"Codes of conduct" mean many professional
educational organizations have adopted codes of conduct
adopted by professional educational organizations that
establish the ethical parameters that guide professional
behavior. The codes range from general guides for teachers
(NEA) to more specific guidelines for teachers of certain
subject area.
"Communication theory" means Aan understanding of
the principles of communication theory (e.g., productive and
receptive communication, cultural context of language,
metacommunication) as they apply in practice in the
classroom.
"Community" means Tthe school community and
includes teachers, administrators, students, and parents and/
or guardians. However, the schools are a part of a larger
community (i.e., neighborhood, town, city) that supports the
school and the students will live.
"Disciplines" means Aacademic disciplines which
include the arts, humanities, languages, mathematics, and
natural and social sciences that provide the basis of the
subjects taught in schools.
"Discourse" means discourse refers to both the writing
and speaking in the classroom that teachers and students
engage in as they seek ways to represent ideas, concepts and
their thinking. It is the ways in which they discuss agree and
disagree, and explore the discipline.
"Diverse learners" means Sstudents are individuals
who differ in the ways in which they learn. They have
different learning styles, modalities, interests, talents and
personalities, all of which affect the ways in which teachers
design instruction.
"Domains" means Tthe broad areas of human
development - intellectual, social, emotional, and physical -
that influence learning.
"Educational Technology" means Tthe use of any
technology (e.g., word processing, data retrieval, electronic
mail) as a set of skills that can be learned and used to support
learning in the classroom.
"Habits of Mmind" mean Mmental habits influence
what students do and how they learn. The development of
habits of mind, like perseverance, confidence, a willingness
to explore new ideas and experiment, seeking feedback from
others, valuing accuracy and precision, avoiding impulsivity,
are a part of the teaching and learning process.
"Health" means Hhealth issues that can affect learning
range from cerebral palsy, Down's Syndrome, and other
severe disabilities to less pronounced and not easily detected
concerns such as diabetes or asthma or nutrition. An
awareness of these conditions and how they affect learning
furthers a teacher's ability to meet the needs of students.
"Instructional Ttechnology" means Tthe use of
specific technologies that are integrated with content to
enhance learning within the disciplines (e.g., graphing
calculators in mathematics, accounting or tax software in
business, editing software for writing).
"Learning Ttheory" means Aan understanding of the
principles of learning theory (e.g., behaviorism,
constructivism, transmission of knowledge) as they apply in
practice in the classroom.
"Meaningful (to students)" means Meaningful is
intended to convey a sense of purpose to students for their
learning. The content takes on significance because of the
connections that are made between the learning and students'
lives. It helps students make sense out of what they are
learning.
"Measurement Ttheory" means Aan understanding of
the principles of measurement theory (e.g., validity,
reliability, bias in testing, test construction, interpretation of
tests) as they apply in practice in the classroom.
"Media Ccommunication" means Tthe use of
technologies that document events (e.g., audio- tape,
videotape, electronic transfer of information through
computer programs) as a means of communicating
information.
"Methods (Pprocess) of Iinquiry" means Inquiry is
the process through which students make new discoveries,
extend their knowledge, or deepen their understandings of
things they already know. Students need to be able to create,
observe, compare, question, record and interpret data,
evaluate and revise, search resources, and share information.
"Multicultural" means The term multicultural is
usually used as an adjective to describe the diverse cultural
backgrounds of students and their families and school
personnel, with an emphasis on their ethnicity, race, religion,
gender, socio-economic status, and family structures. The
term takes on importance in the development of teachers as
they learn to recognize the importance of these factors in the
education process.
"Multiple Aassessments" means Ddecisions about
what students know and are able to do should be based on an
analysis of information obtained from a variety of sources of
evidence. Assessments should be conducted in a variety of
formats (e.g., written and oral tests, observations,
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 77
performances) and address the full range of content.
Bbased on the writing
of Howard Gardner, the identification of seven abilities (i.e.,
linguistic, logical-mathematical, spatial, musical,
bodily-kinesthetic, inter-personal, intra-personal) that
describe distinct aspects of "intelligent."
"Multiple Iintelligences" means
"Nonverbal Ccommunication" means
Ccommunication through means other than the use of words
(e.g., facial expressions, body position, action).
"Pedagogical Kknowledge" means Pedagogical
knowledge is the knowledge of how to teach the knowledge
of instructional methods.
"Performance" means Ccarrying out or completing an
activity or production which displays a student's knowledge
and ability through demonstration.
"Performance Mmodes" means Tthe range of ways in
which students can demonstrate what they know and are able
to do (e.g., writing, speaking, visual works, videotapes,
enacting).
"Professional Ggrowth" means Tthe process in which
teachers examine the relationship between what they and
their students are doing and what their students are learning.
This process involves self-reflection and feedback from
students and colleagues and an exploration of the findings
from research, as well as the use of this information as the
basis for improving personal practice in the future.
"Structures" means Tthe structures of disciplines
which provide the overall framework which both connects
and transcends the skills and content of the discipline. The
big picture or outline of the discipline helps students
understand the commonalties and the interrelationships of
concepts within a discipline. An understanding of the
structure of a discipline allows students to see connections as
they acquire new knowledge.
"Technology" means Tthe use of the word technology
is meant to encompass both educational and instructional
technology within this document unless one of these terms is
used specifically.
"Theory" means Tthe knowledge of the principles and
methods of a science (e.g., learning, measurement) as
contrasted with its application.
3.0 1.0 Content: [Content Knowledge:] The teacher
understands the core concepts and structure(s) of the
discipline(s) and their related content standards and creates
learning experiences that make the content meaningful to
students.
31.1 Knowledge Components
31.1.1 Understands major concepts, principles,
and theories that are central to the discipline
31.1.2 Understands the dynamic and complex
nature of the content of the discipline
31.1.3 Understands the processes of inquiry
central to the discipline
31.1.4 Understands the relationship of knowledge
within the discipline to other content areas and to life
applications
31.2 Performance Indicators
31.2.1 Uses a variety of explanations and
multiple representations of concepts to help develop
conceptual understanding
31.2.2 Anticipates and adjusts for common
misunderstandings that impede learning within the discipline
31.2.3 Engages students in generating and testing
knowledge according to the processes of inquiry of the
discipline
31.2.4 Creates learning experiences that make
connections to other content areas and to life experiences
4 2.0 Human Development and Learning: The teacher
understands how children develop and learn and provides
learning opportunities that support the intellectual, social,
emotional and physical development of the students each
learner.
42.1 Knowledge Components
42.1.1 Understands learning theory, including
how students construct knowledge, acquire skills, and
develop habits of mind
42.1.2 Understands human development,
including the ranges of individual variation within each
domain
42.1.3 Understands the interaction between
student development and learning
42.2 Performance Indicators
42.2.1 Chooses developmentally appropriate
instructional strategies that promote student learning
42.2.2 Develops concepts and principles at
different levels of complexity so that they are meaningful to
students at varying levels of development
4 3.0 Diverse Learners: The teacher understands how
students differ and adapts instruction for diverse learners.
43.1 Knowledge Components
43.1.1 Understands how student learning is
influenced by individual experiences, talents, and prior
learning, as well as language, culture, gender, health, family,
and community
43.1.2 Understands differences in approaches to
learning and performance, including learning styles, multiple
intelligences, and performance modes
43.1.3 Understands cultural diversity and how to
incorporate multi-cultural experiences into instruction
43.1.4 Understands areas of exceptionality in
learning, including talented and gifted and special needs, and
how to access strategies to accommodate individual
differences
43.1.5 Understands the process of second
language acquisition and how to access strategies to support
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78 FINAL REGULATIONS
learning for students whose first language is not English
43.1.6 Understands the needs of culturally and/or
linguistically diverse students
43.1.7 Understands when and how to access
appropriate resources or services to meet special learning
needs
43.1.8 Understands the major principles and
parameters of federal and state disability legislation and
regulation.
43.2 Performance Indicators
43.2.1 Accepts and values all students
43.2.2 Treats all students equitably
43.2.3 Respects students as individuals with
differing experiences, skills, talents, and interests
43.2.4 Uses cultural diversity and individual
student experiences to enrich instruction
43.2.5 Designs instructional activities that
address the range of student learning styles, multiple
intelligences and performance modes
43.2.6 Makes appropriate provisions for
individual students who have particular learning differences
or needs
54.0 Communication: The teacher understands and uses
effective communication.
54.1 Knowledge Components
54.1.1 Understands communication theory and its
application Understands the general types of communication
strategies and appropriate assistive technology that can be
incorporated as a regular part of their instruction.
54.1.2 Understands effective oral, written,
nonverbal, and media communication techniques
54.1.3 Understands the importance of audience
and purpose when selecting ways to communicate ideas
54.1.4 Understands how cultural and gender
differences may affect communication in the classroom
Understands potential positive and negative effects of their
verbal and non-verbal messages on students with cultural,
gender and ability differences.
54.2 Performance Indicators
54.2.1 Uses a variety of communication
techniques
54.2.2 Communicates effectively with diverse
populations
54.2.3 Models accurate and grammatically
correct language
54.2.4 Creates opportunities for students to learn
effective communication
65.0 Learning Environment: The teacher understands
individual and group behavior and creates a learning
environment that fosters active engagement, self-motivation,
and positive social interaction.
65.1 Knowledge Components
65.1.1 Understands principles of effective
classroom management
65.1.2 understands factors that influence
motivation and engagement and how to help students
become self-motivated
65.1.3 Understands individual behavior and how
individuals behave in groups
65.1.4 Understands group dynamics and how
groups function within a community
65.1.5 Understands how to help students learn to
participate effectively in group
65.2 Performance Indicators
65.2.1 Establishes and maintains a classroom
environment with clear expectations and standards of
behavior
65.2.2 Organizes, allocates, and manages time,
materials, and physical space to support learning
65.2.3 Establishes classroom practices that
promote a safe environment
65.2.4 Creates a learning community which
respects individual differences
65.2.5 Establishes a classroom environment
which promotes positive relationships, cooperation, and
purposeful learning
65.2.6 Creates a classroom environment where
student thoughts and ideas are a basis for exploring and
developing understanding
65.2.7 Creates a learning community in which
students work independently and collaboratively
65.2.8 Encourages students to assume
responsibility for their own learning and behavior
76.0 Planning for Instruction: The teacher understands
instructional planning and designs instruction based upon
knowledge of the disciplines, students, the community, and
Delaware's student content standards.
76.1 Knowledge Components
76.1.1 Understands how to incorporate learning
theory, content, curriculum development, and assessment,
and student development when planning
76.1.2 Understands that effective instructional
planning includes the alignment of assessment and
instruction prior to implementation
76.1.3 Understands how to develop short- and
long-range plans consistent with curriculum goals, learner
diversity, and learning theory
76.1.4 Understands how to make connections
between student experiences and education goals
7.1.5 Understands how to maximize the
participation and engagement of students with disabilities in
a general or expanded curriculum.
76.2 Performance Indicators
76.2.1 Evaluates teaching resources and materials
for accuracy and usefulness
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FINAL REGULATIONS 79
76.2.2 Applies principles of scope and sequence
when planning instruction
76.2.3 Creates approaches to learning that are
interdisciplinary and that integrate multiple content areas
76.2.4 Creates and selects learning materials and
learning experiences appropriate for the discipline and
curriculum goals
76.2.5 Uses student prior knowledge and
principles of effective instruction to plan learning activities
relevant to students
76.2.6 Incorporates authentic experiences into
instructional planning
76.2.7 Creates multiple learning activities that
allow for student choice
76.2.8 Establishes and communicates
expectations for student learning
76.2.9 Creates and adapts short- and long-range
plans to achieve the expectations for student learning
76.2.10 Incorporates assessment components into
instructional planning
87.0 Instructional Strategies: The teacher understands a
variety of instructional approaches and uses them to promote
student thinking, understanding, and application of
knowledge.
87.1 Knowledge Components
87.1.1 Understands principles and techniques of a
broad range of instructional approaches, including
questioning, problem solving, discourse, activation of prior
knowledge, and student reflection on learning
87.1.2 Understands the relationship between
instructional approaches, assessment, and the types of
learning promoted
87.1.3 Understands how instructional materials
and educational technologies enhance learning
87.2 Performance Indicators
87.2.1 Uses a range of instructional approaches
that allows students to explore concepts and develop an
in-depth understanding of content
87.2.2 Designs lessons that routinely engage
students in activities that develop problem solving and
critical thinking skills
87.2.3 Designs instructional activities that
provide opportunities for students to apply knowledge
87.2.4 Uses a variety of materials and educational
technologies to enhance student thinking and further
conceptual understanding
87.2.5 Assumes different roles in the
instructional process based on the content and purposes of
instruction
87.2.6 Uses a range of questioning techniques to
promote different levels of understanding
87.2.7 Emphasizes communication as a vehicle
for learning, through the use of discussion, listening,
collaboration, and responding to the ideas of others
87.2.8 Links new concepts to student prior
knowledge
87.2.9 Promotes student awareness of their own
thought processes and how to use reflection to build new
understandings
87.2.10 Incorporates assessment components into
instructional delivery
98.0 Assessment: The teacher understands multiple
assessment strategies and uses them for the continuous
development of students.
98.1 Knowledge Components
98.1.1 Understands measurement theory,
including principles of testing and assessment (e.g., design,
validity, reliability, and bias)
98.1.2 Understands assessment as a means of
collecting information about student progress
98.1.3 Understands the purposes and
characteristics of different kinds of assessments
98.1.4 Understands how to select, construct, and
use assessment strategies and instruments for diagnosis and
evaluation of learning
98.1.5 Understands how to use the results of
assessment to reflect on and modify teaching
98.2 Performance Indicators
98.2.1 Uses assessment to diagnose student
learning needs as a basis for designing instruction
98.2.2 Uses a variety of assessment modes and
multiple measures to evaluate student learning
98.2.3 Uses both formal and informal assessment
strategies to monitor and evaluate student understanding,
progress, and performance
98.2.4 Aligns assessment with instruction
98.2.5 Maintains accurate records and
communicates student progress
98.2.6 Involves students in self-assessment to
help them become aware of their strengths and needs
98.2.7 Encourages students to establish personal
goals for learning based on self-assessment and assessment
results
98.2.8 Modifies instruction based on assessment
results
109.0 Professional Growth: The teacher understands the
importance of continuous learning and pursues opportunities
to improve teaching.
109.1 Knowledge Components
109.1.1 Understands that reflection on teaching is
an integral part of professional growth
109.1.2 Understands the implications of
educational research for teaching
109.1.3 Understands methods of inquiry that
provide for a variety of self-assessment and problem-solving
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
80 FINAL REGULATIONS
strategies for reflecting on practice
109.2 Performance Indicators
109.2.1 Engages in continuous learning
109.2.2 Participates in professional discourse
about educational issues
109.2.3 Uses classroom observation, information
about students, pedagogical knowledge, and research as
sources for active reflection, evaluation, and revision of
practice
109.2.4 Collaborates with other professionals as
resources for problem-solving, generating new ideas, sharing
experiences, and seeking and giving feedback
1110.0 Professional Relationships: The teacher
understands the role of the school in the community and
collaborates with colleagues, parents/guardians, and other
members of the community to support student learning and
well-being.
1110.1 Knowledge Components
1110.1.1 Understands how schools are organized
and operate
1110.1.2 Understands schools as organizations
within the larger community context
1110.1.3 Understands the importance of
community-school interaction
1110.1.4 Understands the importance of
collaboration in education
1110.2 Performance Indicators
1110.2.1 Cooperates with colleagues to develop an
effective learning climate within the school
1110.2.2 Collaborates with other professionals to
solve problems and make decisions to promote student
success
1110.2.3 Develops relationships with parents and
guardians to acquire an understanding of the students' lives
outside of the school
1110.2.4 Works effectively with parents/guardians
and other members of the community to advocate for student
need and to promote learning
1110.2.5 Identifies and uses community resources
to enhance student learning and to provide opportunities for
students to explore career opportunities
1211.0 Educational Technology: The teacher understands
the role of educational technology in learning and uses
educational technology as an instructional and management
tool.
1211.1 Knowledge Components
1211.1.1 Understands how to use various
educational technological tools to access and manage
information
1211.1.2 Understands how to integrate educational
technology into classroom instruction
1211.1.3 Understands how to review and evaluate
educational technologies to determine instructional value
1211.1.4 Understands the uses of instructional
technology to address student needs
1211.2 Performance Indicators
1211.2.1 Designs instruction to promote student
skills in the use of educational technologies to access and
manage information
1211.2.2 Uses a wide range of instructional
technologies to enhance student learning and
problem-solving
1211.2.3 Uses technological advances in
communication to enrich discourse in the classroom
1211.2.4 Uses appropriate educational technology
to create and maintain data bases for monitoring student
progress
1312.0 Professional Conduct: The teacher understands and
maintains standards of professional conduct guided by legal
and ethical principles.
1312.1 Knowledge Components
1312.1.1 Understands school policies and
procedures
1312.1.2 Understands legal issues in education
1312.1.3 Understands the codes of conduct of
professional education organizations
1312.2 Performance Indicators
1312.2.1 Acts in the best interests of students
1312.2.2 Follows school policies and procedures,
respecting the boundaries of professional responsibilities,
when working with students, colleagues, and families
1312.2.3 Follows local, state, and federal law
pertaining to educational and instructional issues, including
regulations related to student rights and teacher
responsibilities
1312.2.4 Interacts with students, colleagues,
parents, and others in a professional manner
1312.2.5 Follows codes of professional conduct
adopted by the Delaware Professional Standards Board.
13.0 "Alignment of Assessment": The ability to
determine what students know and are able to do with
respect to the curriculum is dependent upon how well the
assessment methods and tasks are aligned with, or in
agreement with, the curriculum. Assessments should be
aligned with the content of the curriculum, consistent with
the instructional approaches, and address the range of topics
as weighted in the curriculum.
"Authentic Experiences": The use of performances, or
"authentic activities", such as writing a letter, solving a
real-world mathematics problem, or investigating a question
in science, as a way to teach and to assess student learning.
"Culturally and/or Linquistically Diverse": Students and
families who come to schools with cultural and/or language
backgrounds that differ from the predominant experience of
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 81
monolingual English speakers. The term calls attention to
the range of geographic background, cultural heritage, and
level of English proficiency found among students in
schools.
"Codes of Conduct": Many professional educational
organizations have adopted codes of conduct that establish
the ethical parameters that guide professional behavior. The
codes range from general guides for teachers (NEA) to more
specific guidelines for teachers of certain subject area.
"Communication Theory": An understanding of the
principles of communication theory (e.g., productive and
receptive communication, cultural context of language,
metacommunication) as they apply in practice in the
classroom.
"Community": The school community includes:
teachers, administrators, students, and parents and/or
guardians. However, the schools are a part of a larger
community (i.e., neighborhood, town, city) that supports the
school and the students will live.
"Disciplines": Academic disciplines include the arts,
humanities, languages, mathematics, and natural and social
sciences that provide the basis of the subjects taught in
schools.
"Discourse": Discourse refers to both the writing and
speaking in the classroom that teachers and students engage
in as they seek ways to represent ideas, concepts and their
thinking. It is the ways in which they discuss agree and
disagree, and explore the discipline.
"Diverse learners": Students are individuals who differ
in the ways in which they learn. They have different learning
styles, modalities, interests, talents and personalities, all of
which affect the ways in which teachers design instruction.
"Domains": The broad areas of human development -
intellectual, social, emotional, and physical - that influence
learning.
"Educational Technology": The use of any technology
(e.g., word processing, data retrieval, electronic mail) as a
set of skills that can be learned and used to support learning
in the classroom.
"Habits of Mind": Mental habits influence what
students do and how they learn. The development of habits
of mind, like perseverance, confidence, a willingness to
explore new ideas and experiment, seeking feedback from
others, valuing accuracy and precision, avoiding impulsivity,
are a part of the teaching and learning process.
"Health": Health issues that can affect learning range
from cerebral palsy, Down's Syndrome, and other severe
disabilities to less pronounced and not easily detected
concerns such as diabetes or asthma or nutrition. An
awareness of these conditions and how they affect learning
furthers a teacher's ability to meet the needs of students.
"Instructional Technology": The use of specific
technologies that are integrated with content to enhance
learning within the disciplines (e.g., graphing calculators in
mathematics, accounting or tax software in business, editing
software for writing).
"Learning Theory": An understanding of the principles
of learning theory (e.g., behaviorism, constructivism,
transmission of knowledge) as they apply in practice in the
classroom.
"Meaningful (to students)": Meaningful is intended to
convey a sense of purpose to students for their learning. The
content takes on significance because of the connections that
are made between the learning and students' lives. It helps
students make sense out of what they are learning.
"Measurement Theory": An understanding of the
principles of measurement theory (e.g., validity, reliability,
bias in testing, test construction, interpretation of tests) as
they apply in practice in the classroom.
"Media Communication": The use of technologies that
document events (e.g., audio- tape, videotape, electronic
transfer of information through computer programs) as a
means of communicating information.
"Methods (Process) of Inquiry": Inquiry is the process
through which students make new discoveries, extend their
knowledge, or deepen their understandings of things they
already know. Students need to be able to create, observe,
compare, question, record and interpret data, evaluate and
revise, search resources, and share information.
"Multicultural": The term multicultural is usually used
as an adjective to describe the diverse cultural backgrounds
of students and their families and school personnel, with an
emphasis on their ethnicity, race, religion, gender,
socio-economic status, and family structures. The term takes
on importance in the development of teachers as they learn
to recognize the importance of these factors in the education
process.
"Multiple Assessments": Decisions about what students
know and are able to do should be based on an analysis of
information obtained from a variety of sources of evidence.
Assessments should be conducted in a variety of formats
(e.g., written and oral tests, observations, performances) and
address the full range of content.
"Multiple Intelligences": Based on the writing of
Howard Gardner, the identification of seven abilities (i.e.,
linguistic, logical-mathematical, spatial, musical,
bodily-kinesthetic, inter-personal, intra-personal) that
describe distinct aspects of "intelligent."
"Nonverbal Communication": Communication through
means other than the use of words (e.g., facial expressions,
body position, action).
"Pedagogical Knowledge": Pedagogical knowledge is
the knowledge of how to teach the knowledge of
instructional methods.
"Performance": Carrying out or completing an activity
or production which displays a student's knowledge and
ability through demonstration.
"Performance Modes": The range of ways in which
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
82 FINAL REGULATIONS
students can demonstrate what they know and are able to do
(e.g., writing, speaking, visual works, videotapes, enacting).
"Professional Growth": The process in which teachers
examine the relationship between what they and their
students are doing and what their students are learning. This
process involves self-reflection and feedback from students
and colleagues and an exploration of the findings from
research, as well as the use of this information as the basis
for improving personal practice in the future.
"Structures": The structures of disciplines provide the
overall framework which both connect and transcend the
skills and content of the discipline. The big picture or
outline of the discipline helps students understand the
commonalties and the interrelationships of concepts within a
discipline. An understanding of the structure of a discipline
allows students to see connections as they acquire new
knowledge.
"Technology": The use of the word technology is
meant to encompass both educational and instructional
technology within this document unless one of these terms is
used specifically.
"Theory": The knowledge of the principles and
methods of a science (e.g., learning, measurement) as
contrasted with its application.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE RESIDENTS
PROTECTION
Statutory Authority: 11 Delaware Code,
Chapter 85 (11 Del.C. Ch. 85)
ORDER
Regulations Governing the Adult Abuse Registry
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 amend the Regulations Governing the Adult
Abuse Registry. On May 1, 2003 DLTCRP published
proposed amendments to two regulations in the Register of
Regulations and received written and verbal comments at a
public hearing on June 4. DLTCRP evaluated the
comments; and the evaluation of those comments is in the
accompanying Summary of Evidence.
Findings of Fact:
The Department of Health and Social Services finds that
the proposed amendments to the Regulations Governing the
Adult Abuse Registry, as set forth in the attached copy,
should be adopted as final regulations. Therefore, it is
ordered that the proposed regulations are adopted effective
July 10, 2003.
Vincent P. Meconi, Secretary, DHSS, 6/13/2003
Summary of Evidence:
Two identical sets of written comments were received.
Both endorsed the amendments to the regulations.
Additionally, oral comments were received at the public
hearing which addressed aspects of the Adult Abuse
Registry. While those comments were noted, they did not
pertain to the amendments which were the subject of the
public hearing; and, therefore, are not relevant to the
adoption of the amendments to the regulations.
Section l: Definitions
"Abuse" shall have the same meaning as contained in
16 Del. C., § 1131, and shall include mistreatment, neglect
and financial exploitation as defined therein.
"Child Care Facility" means any child care facility
which is required to be licensed by the Department of
Services for Children, Youth and Their Families.
"Contractor" means an entity under contract to
provide services for more than 20 hours per week
(aggregate) and for more than six weeks in a twelve month
period for a health care service provider, and whose
employees have the opportunity for direct access to persons
receiving care. For purposes of these regulations, contractor
does not include construction contractors.
"Department" means the Department of Health and
Social Services.
"Direct Access" means the opportunity to have
personal contact with persons receiving care during the
course of one's assigned duties.
"Division" means the Division of Long Term Care
Residents Protection.
"Health Care Service Provider" means any person or
entity that provides services in a custodial or residential
setting where health, nutritional or personal care is provided
for persons receiving care, including but not limited to,
hospitals, home health care agencies, adult care facilities,
temporary employment agencies and contractors that place
employees or otherwise provide services in custodial or
residential settings for persons receiving care, and hospice
agencies. Health Care Service Provider does not include any
private individual who is seeking to hire a self-employed
health caregiver in a private home.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 83
"Nursing Facility and Similar Facility" means any
facility required to be licensed under 16 Del. C., Ch. 11.
This includes, but is not limited to, facilities commonly
called nursing homes, assisted living facilities, intermediate
care facilities for persons with mental retardation,
neighborhood group homes, family care homes and rest
residential care facilities. Also included are the Stockley
Center, the Delaware Psychiatric Center and hospitals
certified by the Department of Health and Social Services
pursuant to 16 Del. C. § 5001 or 5136.
"Person Receiving Care" means any person who,
because of his/her physical or mental condition, requires a
level of care and services suitable to his/her needs to
contribute to his/her health, comfort and welfare.
"Person Seeking Employment" means any person
applying for employment with or in a health care service
provider, nursing facility or similar facility that may afford
direct access to persons receiving care at such facility, or a
person applying for licensure to operate a child care facility.
It shall also include a self-employed health caregiver who
has direct access in any private home.
"Substantiated Pending Appeal" refers to a
placement on the Registry based on an investigative finding
prior to the subject exercising his/her right to appeal.
"Substantiated Abuse" means that, weighing the facts
and circumstances, a reasonable person has concluded by a
preponderance of evidence that the identified individual has
committed adult abuse for the purpose of placement on the
Adult Abuse Registry.
See 5 DE Reg. 1073 (11/1/01)
Section 2: Use of Registry
(A) No health care service provider, to include nursing
and similar facilities, or child care facility shall hire any
person seeking employment or retain any contractors
without requesting and receiving an Adult Abuse Registry
check for such person.
(1) Any employer who is required to request an
Adult Abuse Registry check shall obtain a statement signed
by the person seeking employment wherein the person
authorizes a full release for the employer to obtain the
information provided pursuant to such a check. Said
authorization shall include the following language: "I hereby
release the indicated employer to obtain from the Division of
Long Term Care Residents Protection any information
concerning me which may be on the Adult Abuse Registry
pursuant to 11 Del. C., § 8564."
(2) When exigent circumstances exist which
require an employer to fill a position in order to maintain the
required or desired level of service, the employer may hire a
person seeking employment on a conditional basis after the
employer has requested an Adult Abuse Registry check.
(3) The person shall be informed in writing, and
shall acknowledge in writing, that his or her employment is
conditional, and contingent upon receipt of the Adult Abuse
Registry check.
(B) Private individuals seeking to hire an individual to
provide health care services in a private residence may
request the Division to determine if the potential employee is
listed on the Adult Abuse Registry. A short letter of request
along with a release form signed by the prospective
employee may be mailed or faxed to the Division of Long
Term Care Residents Protection (DLTCRP) # 3 Mill Road,
Suite 308, Wilmington, DE 19806, fax number (302) 577-
6673.
See 5 DE Reg. 1073 (11/1/01)
Section 3: Investigation of Adult Abuse
(A) The Division shall investigate any individual
against whom an allegation of adult abuse has been made in
accordance with the time frames delineated in 16 Del. C., §
1134(d).
(B) If the investigation substantiates pending appeal
that the alleged abuse occurred, the Division's Investigations
Unit Chief shall enter on the Adult Abuse Registry, with a
finding of "Substantiated Pending Appeal," the individual's
name, date/time of the incident, a description of same and
the length of time the finding shall remain on the Registry.
(C) The Division may accept preliminary investigations
by a state agency or an entity contracted by a state agency.
The Division will review and may revise the findings upon
further investigation.
(D) Upon placement of a person on the Adult Abuse
Registry, the Division will notify the facility from which the
complaint originated as well as the current employer, if
different, and the victim that the person is on the Registry as
"Substantiated Pending Appeal."
See 5 DE Reg. 1073 (11/1/01)
Section 4: Administrative Hearings
(A) An individual against whom an allegation is
substantiated pending appeal shall be notified by certified
mail at his/her home address, to be followed by written
notice in care of his/her current employer at the discretion of
the Division, that his/her name has been entered on the Adult
Abuse Registry and shall be offered a right to an
administrative hearing. The burden of proof in such hearing
shall be on the Division. Individuals shall be informed upon
completion of the investigation of the following:
(1) The date and time of the incident if known.
(2) The name and type of facility where the
incident occurred.
(3) A brief description of the incident.
(4) Length of time the finding remains on the
Adult Abuse Registry.
(B) All requests for an administrative hearing must be
received in writing, postmarked within 30 days of the date of
the notice that a finding of abuse has been substantiated
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
84 FINAL REGULATIONS
pending appeal. The Director or his/her designee shall
dismiss untimely requests for hearing except when the
individual submits evidence of good cause.
(C) An individual who fails to request an administrative
hearing as described above shall have his/her name and
information regarding the incident changed from a finding of
"Substantiated Pending Appeal" to a finding of
"Substantiated Abuse" on the Adult Abuse Registry. At that
time the Division shall notify the individual, the facility from
which the complaint originated as well as the current
employer, if different, and the victim that the individual is on
the Registry with a finding of "Substantiated Abuse."
(D) An individual who has entered a plea or who has
been convicted by a court of law of adult abuse a criminal
offense based on the same conduct that resulted in placement
on the Adult Abuse Registry shall have the right to an
administrative hearing solely to challenge the proposed
length of time of registration on the Adult Abuse Registry.
(E) The hearing officer shall have the power to compel
the attendance of witnesses and the production of evidence.
Under no circumstance shall the hearing officer order the
release of the investigative report and documents attached
thereto, provided however, the hearing officer may order the
release of statements of witnesses.
(F) The hearing officer should receive requests for
witnesses and/or the production of evidence no less than ten
business days prior to the hearing date.
(G) The individual shall be afforded an opportunity to
appear with or without an attorney, submit documentary
evidence, present witnesses, and question any witness the
Division presents. Limited continuances shall be granted for
good cause.
(H) If, at the conclusion of the hearing, the hearing
officer concludes by a preponderance of evidence, that the
identified individual has committed adult abuse, for the
purpose of placement on the Adult Abuse Registry, a notice
of "Substantiated Abuse" shall be placed on the Adult
Abuse Registry. If, at the conclusion of the hearing, the
hearing officer concludes that the individual has not
committed adult abuse, the finding of "Substantiated
Pending Appeal" shall be removed from the Adult Abuse
Registry.
(I) The hearing officer shall render a written decision
within thirty working days of the hearing and will notify the
individual, the Division, the facility and the victim of the
decision. The notice will specify the reasons for the decision
and, if the finding is substantiated, the length of time the
finding of substantiated abuse shall remain on the Adult
Abuse Registry.
(J) Any person placed on the Adult Abuse Registry
shall have the right to appeal the decision within thirty days
of the finding. The decision of the hearing officer may be
appealed on the record to Superior Court.
See 5 DE Reg. 1073 (11/1/01)
Section 5: Length of Time on the Adult Abuse Registry
(A) The length of time on the Adult Abuse Registry
shall be based on the seriousness of the incident and whether
there exists a pattern of adult abuse. Evidence of mitigating
circumstances may be considered.
(B) The names of registrants with findings of abuse,
neglect or misappropriation entered on the Registry of Nurse
Aides created pursuant to 42 CFR § 483 shall be entered on
the Adult Abuse Registry with a finding of substantiated
abuse. There shall be a right of appeal for findings entered
on the Adult Abuse Registry under this section solely to
challenge the proposed length of time of registration on the
Adult Abuse Registry.
(C) Upon final disposition of the allegation, the
Division shall notify, in writing, the victim, the facility
where the incident occurred as well as the current employer
of the individual, if different, of the final disposition.
See 5 DE Reg. 1073 (11/1/01)
Section 6: Removal of a Person from the Adult Abuse
Registry
(A) The Department shall be authorized to remove a
person from the Adult Abuse Registry before the expiration
of his/her registration period when the Department deems
that the person no longer poses a threat to any person
receiving care in accordance with 11 Del. C., § 8564(g).
(B) A person whose name has been placed on the Adult
Abuse Registry shall have the right to petition the Division,
in writing, for the removal of his/her name from the
Registry. Said petitioner must demonstrate:
(1) A minimum of twelve months has passed since
his/her placement on the Registry.
(2) Affirmative steps have been taken to correct
behavior that led to placement on the Registry, i.e. anger
management counseling, drug/alcohol treatment, sensitivity
training, etc.
(3) Demonstrated improved behavior through
work references.
(C) The Division will evaluate the information
provided by the petitioner and respond in writing within 60
days of receipt of all information provided by the petitioner.
The Division is authorized to grant or deny the removal
based on the review of the information presented. If the
Division denies the request, the petitioner may request a
hearing to appeal the denial, or reapply for the removal after
6 months or when the petitioner can produce evidence of
performance of the affirmative steps listed above.
See 5 DE Reg. 1073 (11/1/01)
Section 7: Disclosure of Adult Abuse Registry Records
Except as otherwise provided in these regulations, the
dissemination of information contained in the Adult Abuse
Registry shall be limited as follows:
(A) Hearing Officer Opinions shall be released upon
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 85
request to the following:
(1) The subject of the hearing.
(2) A victim identified by name in the record or
his/her legal representative.
(3) Law enforcement officials pursuant to an
official investigation.
(4) The Long Term Care Ombudsman pursuant to
a complaint from a victim identified in the record.
(5) The Medicaid Fraud Control Unit of the
Department of Justice.
(6) The Division of Professional Regulation if a
finding of substantiated abuse pertains to a licensed
professional.
(B) Investigative files shall be released upon request to:
(1) Law enforcement officials pursuant to an
official investigation.
(2) The Medicaid Fraud Control Unit of the
Department of Justice.
(3) Rights protection agencies otherwise entitled
under applicable federal or state law.
See 5 DE Reg. 1073 (11/1/01)
ADDENDUM REPORTING TO NURSE AIDE
REGISTRY
In accordance with 42 CFR § 483, the Division of Long
Term Care Residents Protection will report findings of abuse
to the Nurse Aide Registry under the following procedure:
1. When the Division has substantiated pending
appeal a finding of abuse, neglect, mistreatment or financial
exploitation against a certified nurse assistant, a
determination will be made whether the substantiated
findings meet the criteria required in the federal regulations
or the criteria in state statute and regulations.
2. If the findings support the criteria for abuse,
mistreatment or misappropriation of property in the federal
regulations, the certified nurse assistant will be notified that
his/her name is both reported to the Nurse Aide Registry and
placed on the Adult Abuse Registry, and that he/she has a
right to a hearing. The CNA will also be notified that, with
regard to the Nurse Aide Registry, a substantiated finding
will result in a lifetime prohibition against employment in a
federally certified facility.
3. If the findings support the criteria for neglect in the
federal regulations, the certified nurse assistant will be
notified that his/her name is both reported to the Nurse Aide
Registry and placed on the Adult Abuse Registry, and that
he/she has a right to a hearing. The CNA will also be
notified that, with regard to the Nurse Aide Registry, a
substantiated finding of neglect will result in a lifetime
prohibition against employment in a federally certified
facility. However, the CNA will be further informed of his/
her right to petition the Division to have the report removed
from the Nurse Aide Registry in accordance with
§1819(g)(1)(D) of the Social Security Act.
4. The notice to the certified nurse assistant will
include an explanation that the hearing described in the
Adult Abuse Registry regulations will also consider the
placement of the CNA on the Nurse Aide Registry. The
CNA will be informed that if the evidence presented at a
hearing does not warrant a finding of abuse, neglect,
mistreatment or misappropriation of property under the
federal regulations, the evidence will be considered to
determine whether it meets the criteria for abuse, neglect,
mistreatment or financial exploitation under the state Adult
Abuse statute.
See 5 DE Reg. 1073 (11/1/01)
DIVISION OF PUBLIC HEALTH
OFFICE OF EMERGENCY MEDICAL SERVICES
Statutory Authority: 16 Delaware Code,
Section 9706(h) (16 Del.C. §9706(h))
ORDER
Pre-Hospital Advanced Care Directive Regulations
Nature Of The Proceedings:
Delaware Health and Social Services ("DHSS")
initiated proceedings to adopt State of Delaware Pre-
Hospital Advanced Care Directive 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 97.
On November 1, 2002 (Volume 6, 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 1, 2002, or
be presented at a public hearing on November 26, 2002, after
which time DHSS would review information, factual
evidence and public comment to the said proposed
regulations. During the public hearing it was announced that
the public comment period would be extended to December
31, 2002, to allow additional time to review the proposed
Pre-Hospital Advanced Care Directive form.
Verbal and written comments were received during the
public comment period and evaluated. The results of that
evaluation are summarized in the accompanying "Summary
of Evidence."
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
86 FINAL REGULATIONS
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, 2002, Register of
Regulations, based on comments received during the public
comment period. These modifications are deemed not to be
substantive in nature.
THEREFORE, IT IS ORDERED, that the proposed
State of Delaware Pre-Hospital Advanced Care Directive
Regulations are adopted and shall become effective July 10,
2003, after publication of the final regulation in the
Delaware Register of Regulations.
Vincent P. Meconi, Secretary, 6/13/2003
Summary Of Evidence
A public hearing was held November 26, 2002 at 9:00
a.m., in the Conference Room of the Office of Emergency
Medical Services, Blue Hen Corporate Center, Suite 4-H,
655 S. Bay Road, Dover, Delaware before David P. Walton,
Hearing Officer, to discuss the proposed Department of
Health and Social Services (DHSS) Pre-Hospital Advanced
Care Directive Regulations. Announcements regarding the
public hearing were published in the Delaware State News,
The News Journal and the Delaware Register of Regulations
in accordance with Delaware Law. Andy Kloepfer from the
Office of Emergency Medical Services (OEMS) of the
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. Testimony was given at the public
hearing and six letters were received commenting on the
proposed regulations during the public comment period
(November 1, 2002 through December 31, 2002).
Organizations that commented on the proposed regulations
included:
• Delaware Health care Facility Association
• Christiana Care Hospital Services Ethics
Committee
• Governor's Advisory Council for Exceptional
Citizens
• State Council for Persons with Disabilities
• Courtland Manor Inc., Nursing and Convalescent
Home
• Kent County Department of Public Safety,
Emergency Medical Services Division
All public comments and the DHSS (Agency) responses
are as follows:
• Would emergency medical services (EMS)
respect an Advanced Directive?
Agency Response: The purpose for these regulations is
to set the process whereby pre-hospital emergency medical
service providers will know the wishes of a patient. Only
Delaware Pre-Hospital Advanced Care Directive (PACD)
forms authorized by these regulations will be recognized by
pre-hospital emergency medical service providers.
• In Delaware for an Advanced Directive to be
valid for a resident in a nursing home we have to
have a representative come into the office with
them and sign as witnesses; would this be a
requirement for thePACD form?
Agency Response: No witnesses are needed, however a
surrogate can complete the PACD form for a terminally ill
person if the person is unable to do so. Physician signature
is required on the PACD form.
• Has there been any communication between the
Office of Emergency Medical Services and the
Division of Long Term Care Residents
Protection through survey or anything of
written regulation as to who is going to assume
the responsibility of the protocols that are being
followed?
Agency Response: Long Term Care Resident Protection
is not required to make this a survey issue. Electing to have
a Pre-Hospital Advanced Care Directive is a selfdetermination
and personal choice matter, not a mandated
program.
• Are the facilities that are going to be surveyed
regarding these protocols going to be cited if
there is a patient in their building that is
terminal?
Agency Response: This is not a mandated program.
This is about a person with a terminal illness choosing to
have a Pre-Hospital Advanced Care Directive for purposes
of alerting pre-hospital emergency medical service providers
of his or her treatment wishes.
• Who has the responsibility for originating the
request for the PACD form to be signed?
Agency Response: This is a personal choice made by
each individual.
• Who is going to coordinate this information and
educate health care system providers and
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 87
physicians regarding this regulation and PACD
form?
Agency Response: The Office of Emergency Medical
Services will coordinate training for health care providers
and physicians to include training in each county during the
Summer of 2003.
• Who is going to be held liable if the physician
does not comply with the completion of the
form?
Agency Response: It is beyond the scope of these
regulations to assign liability if a physician refuses to sign a
patient's Pre-Hospital Advanced Care Directive form.
• Does this form negate the need for a living will
or power of attorney?
Agency Response: No. The PACD form is different and
has a different purpose than a living will or power of
attorney. The PACD form is specifically designed for prehospital
EMS providers to determine a terminally ill
patient's treatment wishes.
• If the person is terminal and they have this form
(PACD) and they can think through the form, do
they also need to have a living will or power of
attorney?
Agency Response: The living will, power of attorney
and PACD form are separate documents used for different
purposes. EMS and the Department will not require a living
will or a power of attorney if the PACD form is properly
completed and signed by a physician.
• Does the PACD form supercede any other
forms?
Agency Response: The PACD form does not supercede
any other forms. This is the first of its kind designed
specifically for the pre-hospital EMS provider.
• If a person has an Advanced Health Care
Directive and is terminally ill, but has not
completed a PACD form, will pre-hospital EMS
providers ignore the Advanced Health Care
Directive?
Agency Response: If a person does not have a properly
completed PACD form signed by a physician, pre-hospital
EMS providers will follow established resuscitative medical
protocols and follow hospital medical direction.
• The "Purpose" section of the regulation includes
some questionable representations. For
example, it recites that living wills, powers of
attorney, and other advance directives do not
apply to the pre-hospital environment. To the
contrary, the Health-Care Decisions chapter
ostensibly includes paramedics under its
definition of "health care provider", i.e., "an
individual licensed, certified, or otherwise
authorized or permitted by law to provide health
care in the ordinary course of business or
practice of a profession" [Title 16 Del.C. Sec.
2501(j)]. In general, "health care providers" are
directed to comply with an "individual
instruction" [Title 16 Del.C. Sec. 2508(d)].
Moreover, the above Sec. 9706(h) manifests a
legislative expectation that EMS providers will
recognize and honor directives consistent with
regulatory standards. Although the Health-
Care Decisions chapter also provides that "The
initiation of emergency treatment shall be
presumed to represent a suspension of an
advance health-care directive while receiving
such emergency treatment [Title 16 Del.C. Sec.
2504(f)], the effects of this provision is
apparently limited by the later enacted Sec.
9706(h) and the presumption may arguably be
rebutted by actual knowledge of the directive.
Agency Response: In accordance with Title 16 Del.C.
Sec. 9706(h), this regulation specifically applies to EMS
providers certified by the Delaware State Fire Commission
(Basic EMTs--Emergency Medical Technicians) or the
Office of Emergency Medical Services (Paramedics).
Additionally, this regulation provides a Delaware
Prehospital Advanced Care Directive Form and defines prehospital
advanced care directive procedures to be used by
and for terminally ill patients only. The whole purpose of
these regulations is to give a person with a terminal illness
the choice as to what type of pre-hospital emergency
treatment they desire. In the pre-hospital emergency
environment, EMS providers will now have clear, verifiable,
and readily recognizable guidance to follow by the presence
of a properly executed Prehospital Advanced Care Directive
Form. In the absence of a properly executed Prehospital
Advanced Care Directive Form, the on-scene EMS provider
will follow established emergency medical protocols and
emergency medical direction. The Department's assigned
Deputy Attorney General reviewed these Regulations in
relationship to the Health-Care Decisions chapter of Title 16
Del.C. and found them to be legally adequate.
• The definitions [Sec. 1.0] are generally derived
verbatim from the statute, Title 16 Del.C. Sec.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
88 FINAL REGULATIONS
2501. However, the reference to "terminal
illness" should preferably be amended to refer to
"terminal condition". This is the term used in
the statute [Title 16 Del.C. Sec. 2501(r)].
Moreover, a "condition" is broader than
"illness".
Agency Response: In accordance with 16 Del.C. Sec.
9706(h)(1), "The regulation shall define pre-hospital
advanced care directive procedures to be used for terminally
ill patients only." Based on this statute and advice from the
Department's Deputy Attorney General, terminal illness was
used in the regulation.
• Section 3.2 of the regulations is unduly
restrictive in representing that blindness,
illiteracy, or paralysis of one hand are examples
of physical inability to sign a PACD. The
Delaware Code [Title 1 Del.C. Sec. 302(23)]
provides that a "mark" suffices as a signature if
a person cannot write his or her name.
Agency Response: The Department lists these
conditions as examples of conditions that "may" prevent a
person from being able to physically sign the PACD form.
The word "may" was purposely used in this sentence to
make this a not all-inclusive statement. Certainly if a person
has the legal capacity and is physically able to sign or
provides that person's mark, no agent or surrogate would be
necessary.
• The liability limitation section (Sec. 10.0) omits
the good faith standard of the statute, Title 16
Del.C. Sec. 2510(b). The regulatory immunity
provision is narrower. For example, if an EMS
provider made a good faith mistake and did not
follow the letter of the Health Care Decisions
Act, he would qualify for immunity under the
statute but not the regulation.
Agency Response: Section 10.1 of the regulation clearly
acknowledges all immunity provided to EMS providers by
16 Del.C., Chapter 25 (Health-Care Decisions).
Additionally, in the regulation the Department included
immunity for EMS providers from the appropriate licensing,
registering, or certifying authority as a result of withholding
or withdrawing any health care under authorization obtained
in accordance with the Health-Care Decisions chapter.
• The reciprocity section [Sec. 12.0] provides that
an out-of-state EMS DNR form approved by the
Division of Public Health will be honored but
categorically treated as authorizing only Option
B supports [Sec. 4.1.2]. If the out-of-state form
clearly requested Option A or Option C
supports [Secs. 4.1.1 and 4.1.3], this should be
honored. See Title 16 Del.C. Sec. 2517.
Agency Response: As result of this comment and after
careful review of the law, the Reciprocity section of the
regulation was amended to clarify that out-of-state EMS
DNR forms that are approved by the Director of Public
Health will be honored under the appropriate Prehospital
Advanced Care Directive Option A, B or C.
• The regulations do not seem to cover the
statutory prohibition on withholding life
sustaining procedures if an individual is
pregnant. Compare Title 16 Del.C. Sec. 2503(j).
Agency Response: Based on this comment and after
careful review of the law, Section 8.0 of the Pre-Hospital
Advanced Care Directive Regulations has been amended to
include requirements per the statute indicated.
• The regulations do not seem to cover the
statutory authority of an EMS provider to
decline to honor a directive based on conscience.
Section 4.0 contemplates that the EMS provider
will only provide services listed in the regulation,
without exception. For example, Option C
recites that no form of life saving efforts will be
administered by EMS personnel under any
circumstances. Under the statute, the EMS
provider is authorized to decline to honor the
directive based on conscience. Title 16 Del.C
Sec. 2508(e).
Agency Response: Based on this comment and after
careful review of the law, a paragraph addressing matters of
conscience was added to Section 4.0 of the Pre-Hospital
Advanced Care Directive Regulations.
• It is very confusing and misleading to call these
regulations and the subsequent form "Pre-
Hospital Advance Care Directives" then
continually follow that with.... (Do Not
Resuscitate Orders). This is very confusing and
could easily be remedied by simply calling the
whole thing "State-wide Do Not Resuscitate
Orders".
Agency Response: In accordance with 16 Del.C. Sec.
9706(h), pre-hospital advanced care directive is the only
language authorized to identify the form a terminally ill
person may execute to choose pre-hospital emergency
treatment options. Additionally, 16 Del.C. Chapter 25,
Health-Care Decisions, does not use Do Not Resuscitate
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 89
Orders terminology. As a result of this comment the words
do not resuscitate orders were eliminated from both the
Purpose and Definition section of the Regulations. The
actual words "Do-Not-Resuscitate-Orders" are now only
used twice in the Reciprocity section of the Regulations for
clarification purposes. It is important to note that the letters
"DNR" are used in the regulation and are assigned the
meaning Do Not Resuscitate.
• It is reasonable to have a three tiered approach
from more intensive to less intensive lifesustaining
interventions, but the descriptions on
the Prehospital Advanced Care Directive form
for option A, B, and C should be changed to
read:
Option A-Maximal restorative care before arrest,
then DNR
(This would allow the use of intubation, IV drugs,
pressors, cardioversion, but not CPR and defibrillation).
The goal of care here is to do everything possible to
stabilize the patient and prevent cardiopulmonary
arrest.
Option B-Limited restorative care before arrest,
then DNR
(This would allow 'less invasive' life sustaining care
such as IV drugs, NIPPV, oxygen, but not intubation,
pressors, cardioversion/defibrillation, or CPR. The goal
of care here is to do less invasive life-sustaining care with
more emphasis on palliative care and comfort.
Option C-Comfort care only
(This could include oxygen, oral airway, IV drugs
aimed at relieving pain or distress such as morphine or
lasik, positioning, or transport). The goal of care here is
to relieve suffering and provide comfort and not to
sustain life.
Agency Response: Under Option A, the full scope of the
Delaware Statewide Advanced Life Support (ALS)
treatment must be provided to the individual who has
selected this option. Therefore, in addition to intubation,
defibrillation and CPR would be required to be administered
by the EMS field responder under the full scope of
restorative interventions permissible under the Delaware
Statewide ALS treatment protocol.
Currently, Option B as presented in section 4.0 of the
PACD Regulations encompasses both limited care and
comfort care for control of signs and symptoms.
Additionally, the law uses very prescriptive language that
states, "Option B (Basic Life Support) - Limited (Palliative)
Care Only Before Arrest...."
Finally in addition to Option A and B above, it was
recommended by the Department of Health and Social
Services Deputy Attorney General that "Option C (Do Not
Resuscitate (DNR)) - No Care Administered of Any Kind"
be included as an option for those terminally ill individuals
who would want this option.
• As written these regulations are fuzzy-feel good
regulations with self contradicting provisions
with an overall affect of restricting personal
choice in health care.
Agency Response: The proposed regulations were
written in accordance with Delaware Code Title 16, Chapter
25, 'Delaware Death with Dignity Act'. They were written
solely for the intent of treatment by emergency medical
services (EMS) personnel in the field responding to 911
calls. In accordance with the above referenced Code, the
Regulations are specifically centered on those individuals
with a terminal illness. The Regulations clearly outline the
three optional methods a patient may request in conjunction
with their primary physician, and which the EMS field
responder personnel are allowed and required to follow and
adhere to.
• Section 3.1 clearly requires the diagnosis of a
terminal illness before a PACD is effective,
appears to allow the creation of a PACD in
advance of such declaration. How will EMS
personnel differentiate PACD which are
effective from those which aren't? Neither the
form nor wallet card has any mention of
terminal illness.
Agency Response: In accordance with Delaware Code
Title 16, Chapter 25, 'Delaware Death with Dignity Act', a
Prehospital Advanced Care Directive (PACD) may and will
only be issued to an individual by their primary care
physician upon the diagnosis and prognosis of a terminal
illness. EMS field responder personnel summoned by a 911
call will only honor the one PACD form. Any other similar
type form (i.e. internal nursing facility forms, living wills
etc....) will not be honored by the EMS field responder
personnel. The form does indeed clearly indicate the
acknowledgement of terminal illness. At the very top of the
first page of the form in bold letters it states, "Pre-Hospital
Advanced Care Directive (PACD) For Terminal Illness
Only". In addition, the first sentence of the form reads as
follows: " I, ______________ (please print fill name),
request the following emergency medical care in the event I
am incapacitated due to my terminal illness, as herein
described". While it is true the proposed draft wallet
identification card does not make mention of terminal
illness, it must be signed by individual's treating physician,
and therefore is assumed that the terminal illness exists.
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90 FINAL REGULATIONS
• The wallet card is useless duplication and worse
would give false belief that advanced directive
would be met if you carry the card. In fact you
must have the form alone or both form and
wallet card for it to be honored. This is very
confusing and a waste of time and effort.
Agency Response: The use of a wallet card is a
secondary protective method in conjunction with the signed
PACD form to ensure the patient's wishes are carried out
and adhered to. In certain circumstances, and EMS field
responder could be alerted to the fact that a PACD form
exists for an individual through the realization of an
individual's wallet card or wrist bracelet.
• In accepting other states EMS-DNR's as Option
B, the terminal illness issues is circumvented as
such a requirement is not necessarily in play
elsewhere.
Agency Response: It important to keep the proposed
Regulations in perspective. Delaware law does not allow for
a Do-Not-Resuscitated (DNR) order. And, the proposed
PACD Regulations, in keeping with the law, only allows for
individuals diagnosed with a terminal illness by a licensed
physician to be able to obtain a PACD. Option B allows for
the control of signs and symptoms (comfort acre) before
patient arrest. This method of treatment would still allow for
an individual's out-of-state "DNR" order to be honored, but
without violating Delaware law and regulation.
• Acceptance of a Medic Alert Bracelet in lieu of
the PACD both the terminal illness and
physician declaration are by passed. While we
favor this approach it does not in essence
invalidate the entire regulation.
Agency Response: The presence of a medical bracelet,
be it Medic Alert or some other type of bracelet, falls into the
same category as the wallet card. It is merely a secondary
form of the individual's wishes, to be used in conjunction
with; not in lieu of, the physician signed PACD form.
Section 5.0, Methods of Identification, of the proposed
PACD Regulations, clearly states: "Provided there is a
signed PACD, or other approved Division of Public Health
signed form, the following are acceptable for implementing
the EMS PACD protocol". The bracelet and wallet card are
not acceptable in lieu of the signed PACD form; they are
acceptable in conjunction with the signed PACD form.
• The regulation conflicts with the Federal
Advance Directives Act which requires that any
health care provider, who receives federal
funding, abide by the Advanced Directives of the
patient in whatever form and without regard to
a diagnosis of a terminal condition. This
regulation therefore puts providers in a position
of violating Federal Law or simply not calling
for emergency ambulance transport.
Agency Response: Currently, there are eight (8) states
without any form of PACD/DNR laws on the books:
Delaware, Iowa, Mississippi, Nebraska, North Dakota,
Pennsylvania, South Dakota, and Vermont, as well as the
District of Columbia. Federal laws of this type do not
mandate each individual state's healthcare laws, as any
Federal funding received by an individual state is not
specifically mandated for PACD and DNR protocols.
Therefore, it is not a violation of the law referenced in the
comment. If a patient has a terminal illness, and does not in
fact have a signed PACD form, an EMS field responder
called to the individual's location via 911 dispatch will
receive full Advanced Life Support.
• Can inmates in prison elect to have a Pre-
Hospital Advanced Care Directive?
Agency Response: Any resident of Delaware (including
those incarcerated) who has a terminal illness may request a
Pre-Hospital Advanced Care Directive from their primary
physician. As long as the form and wallet identification card
are filled out and signed by both the patient and the
physician, then EMS personnel must honor the patient's
wishes.
• In Option B it discusses some trauma type
treatments. Historically EMS providers only
looked at Do-Not-Resuscitate relating to medical
conditions. Reading this, it implied that should a
patient select Option B and was in a car crash
the conditions would apply. Can this be
clarified?
Agency Response: Option B Pre-Hospital Advanced
Care Directive provides for making the patient comfortable,
while not providing any type of life-saving care or effort. If
the terminally ill patient is in a car accident, then yes, the
PACD form and option selected would need to be followed
by the EMS personnel on the scene.
• Are there 2 forms for PACD? It seemed from
reading the Regulation that there could be one
for the nursing homes and one for EMS
providers.
Agency Response: The law and regulation authorizes
only one Pre-Hospital Advanced Care Directive (PACD)
form that will be recognized and followed by emergency
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FINAL REGULATIONS 91
medical service personnel in the pre-hospital emergency
environment. Nursing homes may have other Advanced
Care Directive forms in accordance with the Death with
Dignity Act, but EMS personnel will only recognize the
PACD form.
Additionally, minor grammatical, format and
clarification changes were made to the proposed
Regulations.
The public comment period was open from November
1, 2002 to December 31, 2002.
Verifying documents are attached to the Hearing
Officer's record. The Regulations have been approved by
the Delaware Attorney General's office and the Cabinet
Secretary of DHSS.
Pre-Hospital Advanced Care Directive Regulations
Authority: 16 Delaware Code, Chapter 97, Section 9706(h)
Purpose: There is a need to address the recognition of Pre-
Hospital Advanced Care Directives [(Do-Not-Resuscitate
Orders)] in conjunction with Advanced Care Directives as
provided for in Delaware Code Title 16, Chapter 25, in the
pre-hospital emergency environment. These regulations
require the use of a specific form of individual identification
that can be readily recognized and verified during a prehospital
emergency. The regulations also detail the legislated
immunity for certified providers honoring this order.
While such legal instruments serve individuals well in
clinical settings such as hospitals and nursing homes, they
pose practical problems in life-threatening situations when
emergency medical services (EMS) individuals are called for
assistance. Living wills, powers of attorney and other
advance directives are often long and complex, can vary
greatly in form and content, and do not apply to the prehospital
environment. Many are hand-written and are
impossible to verify on the scene of an emergency.
Furthermore, in most states, if an EMS provider is called to a
scene, they are legally required to perform life-saving
techniques (CPR) even if the individual's heart has stopped
and they are clinically expired. And, they cannot stop these
efforts based on a living will or appointed proxy's request,
because advance directives may not apply in EMS related
medical emergencies. A Delaware Pre-Hospital Advanced
Care Directive is a specific order initiated by the individual
and signed by a physician stipulating a specific order for
individual non-resuscitation.
A Pre-Hospital Advanced Care Directive regulation
authorizes the Division of Public Health/Office of
Emergency Medical Services in conjunction with the Board
of Medical Practice, the Delaware Fire Prevention
Commission, and other key groups within the State to
develop and implement an EMS Pre-Hospital Advanced
Care Directive (PACD) protocol for EMS providers. This
law and protocol standardize the legal advanced care
directive documentation so EMS providers have a readily
recognizable format upon which they may make a decision.
This would also allow EMS providers to honor the
individual's wishes to the greatest extent possible and grant
the individual the dignity, humanity and compassion they
deserve.
1.0 Definitions
"Advanced health care directive" shall mean an
individual instruction or power of attorney for health care, or
both.
"Agent" shall mean an individual designated in a power
of attorney for health care to make a health care decision for
the individual granting the power.
"Artificial nutrition and hydration" means supplying
food and water through a conduit, such as a tube or
intravenous line where the recipient is not required to chew
or swallow voluntarily, including, but not limited to,
nasogastric tubes, gastromstomies, jejunostomies and
intravenous infusions. Artificial nutrition and hydration does
not include assisted feeding, such as spoon or bottle-feeding.
"Capacity" shall mean an individual's ability to
understand the significant benefits, risks and alternatives to
proposed health care and to make and communicate a health
care decision.
"Declarant" shall mean an individual who executes an
advance health care directive.
"Division" shall mean the Division of Public Health.
"DNR" shall mean Do Not Resuscitate. [A physician
order in writing on forms approved by the Director of
the Division of Public Health instructing EMS providers
to withhold care as instructed on the order.]
"EMS prehospital advanced care directive order
(PACD)" shall mean an advanced health care directive[/do
not resuscitate order as defined in paragraph 1.1, ] signed
by the individual's physician on forms approved by the
Director of the Division of Public Health.
"EMS PACD Program" shall mean the regulations and
administrative guidelines promulgated by the Division of
Public Health for the administration of this Act.
"Guardian" shall mean a judicially appointed guardian
or conservator having authority to make health care
decisions for an individual.
"Health care" shall mean any care, treatment, service
or procedure to maintain, diagnose or otherwise affect an
individual's physical or mental condition.
"Health care decision" shall mean a decision made by
an individual or the individual's agent, surrogate or guardian
regarding the individual's health care, including:
1. Selection and discharge of health care
providers and institutions;
2. Acceptance or refusal of diagnostic tests,
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92 FINAL REGULATIONS
surgical procedures, programs of medication and orders not
to resuscitate; and
3. Directions to provide, withhold or withdraw
artificial nutrition and hydration and all other forms of health
care.
"Health care institution" means an institution, facility
or agency licensed, certified or otherwise authorized or
permitted by law to provide health care in the ordinary
course of business or practice of profession.
"Emergency medical services (EMS) provider" shall
mean individual providers certified by the Delaware State
Fire Prevention Commission or the Office of EMS, or
emergency medical dispatchers certified by the National
Academy of Emergency Medical Dispatch.
"Emergency medical services (EMS) provider
agency" shall mean a provider agency certified by the
Delaware State Fire Prevention Commission or the Office of
EMS, or an emergency medical dispatch center under
contract with the Department of Public Safety.
"Individual" means an individual, corporation,
business trust, estate, trust, partnership, association, joint
venture, government, governmental subdivision, agency or
instrumentality or any other legal or commercial entity.
"Individual instruction" means an individual's
direction concerning a health-care decision for the
individual.
"Life-sustaining procedure" means:
Any medical procedure, treatment or intervention that:
1. Utilizes mechanical or other artificial means to
sustain, restore, or supplant a spontaneous vital function; and
2. Is of such a nature as to afford an individual no
reasonable expectation of recovery from a terminal illness.
3. Procedures that can include, but are not limited
to, assisted ventilation, renal dialysis, surgical procedures,
blood transfusions and the administration of drugs,
antibiotics and artificial nutrition and hydration.
"Medically ineffective treatment" means that, to a
reasonable degree of medical certainty, a medical procedure
will not:
1. Prevent or reduce the deterioration of the
health of an individual: or
2. Prevent the impending death of an individual.
"Office" shall mean the Office of Emergency Medical
Services (EMS) within the Division of Public Health.
"PACD" means an EMS prehospital advanced care
directive [or do not resuscitate order] signed by the
individual and the individual's physician, on forms approved
by the Director of Public Health.
"Physician" means an individual licensed to practice
medicine under Chapter 17 of Title 24 of the Delaware
Code.
"Power of attorney for health care" means the
designation of an agent to make health care decisions for the
individual granting the power.
"Primary physician" or "attending physician" shall
mean a physician designated by an individual or the
individual's agent, surrogate or guardian to have primary
responsibility for the individual's health care or, in the
absence of a designation, or if the designated physician is not
reasonably available, a physician who undertakes the
responsibility.
"Reasonably available" shall mean readily able to be
contacted without undue effort and willing and able to act in
a timely manner considering the urgency of the individual's
health care needs.
"Supervising health care provider" shall mean the
primary physician, or if there is no primary physician or the
primary physician is not reasonably available, the health care
provider who has undertaken primary responsibility for an
individual's health care.
"Surrogate" means an adult individual or individuals
who (1) have capacity;(2) are reasonably available; (3) are
willing to make health care decisions, including decisions to
initiate, refuse to initiate, continue or discontinue the use of a
life sustaining procedure on behalf of a individual who lacks
capacity; and (4) are identified by the individual's
identification in accordance with this chapter as the
individual or individuals who are to make those decisions in
accordance with this chapter.
"Terminal illness" means any disease, illness or
condition sustained by any human being for which there is
no reasonable medical expectation of recovery and which, as
a medical probability will result in the death of such human
being regardless of the use or discontinuance of medical
treatment implemented for the purpose of sustaining life or
the life processes.
2.0 Right to Self-Determination
2.1 An individual, legally adult, who is mentally
competent, has the right to refuse medical or surgical
treatment if such refusal is not contrary to existing public
health laws.
3.0 Medical Prerequisites
3.1 Any individual with legal capacity may execute a
Pre-Hospital Advanced Care Directive (PACD); however,
this Directive will not become effective unless signed by a
physician after diagnosis of a terminal illness.
3.2 Individual with legal capacity, who is able to
communicate by some reliable, proven means (i.e. verbally,
eye blink, finger tap) but is physically unable to sign, may
execute a PACD through an agent or surrogate to be
effective upon the diagnosis of a terminal illness from a
physician in Delaware. Conditions that may prevent physical
signing of thePACD include, but are not limited to:
3.2.1 Blindness or illiteracy
3.2.2 Severe arthritis
3.2.3 Amyotrophic lateral sclerosis (ALS or Lou
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 93
Gehrig's disease)
3.2.4 Quadriplegia
3.2.5 Paralysis of the writing hand
3.2.6 Amputation
3.3 Individual who no longer has capacity may be
issued a PACD through an agent, guardian or surrogate and
the individual's physician.
3.3.1 Conditions for which a PACD may be
issued are:
3.3.1.1 Terminal Illness
4.0 Prehospital Advanced Care Directives
4.1 Prehospital Advanced Care Directive Options
4.1.1 Option A (Advanced Life Support) -
"Maximal (Restorative) Care Before Arrest, Then DNR"
4.1.1.1 When this option is selected on an
EMS PACD, the individual shall receive the full scope of
restorative interventions permissible under the Delaware
Statewide ALS treatment protocol (including intubation for
respiratory distress, cardiac monitoring, synchronized
cardioversion for pulse-present ventricular or supra
ventricular tachycardia, cardiac pacing for pulse-present
symptomatic bradycardia, insertion of IV's, and drug
therapy), in an attempt to forestall cardiac or respiratory
arrest (see Delaware Statewide ALS treatment protocol for
full description of permissible interventions).
4.1.2 Option B (Basic Life Support) - "Limited
(Palliative) Care Only Before Arrest, Then DNR"
4.1.2.1 Palliative care is defined as supportive
care for control of signs and symptoms.
4.1.2.1.1This includes opening the airway
using non-invasive means (e.g. chin lift, jaw thrust, finger
sweep, nasopharyngeal airway, oropharyngeal airway and
abdominal thrust, O2 administration, suctioning, positioning
for comfort, control of external bleeding using standard
treatments (dressing, elevation, direct [pressure, pressure
points, cold packs, tourniquets, etc.), immobilize
fractures, and family or other health care provider
administered medications for pain control.
4.1.2.1.2pressure, pressure points, cold
packs, tourniquets, etc.), immobilize fractures, and
family or other health care provider administered
medications for pain control.]
4.1.2.1.2[3]Existing IV lines may be in
place and, if so, shall be monitored to the extent possible
according to the provider's level of certification and
licensure.
4.1.2.2 Inappropriate Care for a Palliative
Care Individual includes:
4.1.2.2.1Pacing, cardioversion, and
defibrillation
4.1.2.2.2Initiation of IV therapy
4.1.2.2.3EMS Initiated Medications -
Except passive oxygen
4.1.2.2.4CPR
4.1.2.2.5Intubation (EOA, endotracheal,
nasotracheal, or gastric tube)
4.1.2.2.6Pneumatic anti-shock garment
(PASG)
4.1.2.2.7Active ventilatory assistance,
unless on an out individual ventilator.
4.1.3 Option C (Do Not Resuscitate) - "No Care
Administered Of Any Kind".
4.1.3.1 This option permits an individual to
reject care of any kind provided there is a signed order
clearly stating this course of action. Where this option is in
place, no form of life saving efforts, including but not
limited to, the opening of the airway, the administration of
oxygen, or any other form of life-saving efforts will be
administered by EMS personnel under any circumstances,
unless the individual provides some form of communication
as indicated in Section [3.1.2A 3.2]
[4.1.4 Nothing in this regulation will require
an EMS provider to comply with a Pre-Hospital
Advanced Care Directive for reasons of conscience.]
5.0 Methods of Identification
5.1 Provided there is a signed PACD, or other approved
Division of Public Health signed form, the following are
acceptable for implementing the EMS PACD protocol:
5.1.1 Delaware EMS PACD Form
5.1.2 Delaware EMS PACD Wallet Card
5.1.3 Wrist Bracelet to include Medic-Alert
Bracelet or other bracelet approved by the Director of the
Division of Public Health.
5.1.4 Other State EMS PACD Form
5.2 Even if a signed PACD, or other approved Division
of Public Health signed form is present, the following are
not acceptable for implementing the EMS PACD protocol:
5.2.1 Advance directives without an EMS
PACD
5.2.2 Facility specific PACDs
5.2.3 Notes in medical records
5.2.4 Prescription pad orders
5.2.5 PACD stickers
5.2.6 Any oral request.
5.2.7 Any other device or instrument not listed
above as acceptable.
5.3 The Delaware EMS PACD must be completed for
all individuals on a standard form approved by the Division
of Public Health, and the form must be present.
5.4 If any question exists as to the identity of the
individual identified on the Delaware EMS PACD form, the
EMS provider shall seek to identify the individual through
another form of positive identification.
5.4.1 If in doubt as to the identification of the
individual, the EMS provider shall initiate resuscitative
efforts.
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94 FINAL REGULATIONS
6.0 Revocation of PACD
6.1 An EMS PACD may be revoked at any time by:
6.1.1 A written cancellation signed by the
individual.
6.1.2 An oral statement or gesture of any
manner by the individual in the presence of two (2)
witnesses, one of whom is a health care provider, requesting
only palliative care or resuscitation. If the individual revokes
an EMS PACD orally, the EMS PACD notification devices
do not need to be destroyed. EMS providers should
thoroughly document the circumstances of the revocation.
An oral revocation by an individual is only good for the
single response or transport for which it was issued.
6.2 During an emergency, when the authorized decision
maker is not the individual, this individual cannot revoke an
EMS PACD. Because of the difficulty in identifying
authorized decision makers in emergent situations, it is
incumbent upon an authorized decision maker who has
authority to revoke an EMS PACD to do so prior to the
emergency if they wish resuscitation for the individual.
Under no circumstances, can a person or entity, other than
the individual, revoke an EMSPACD during an emergency.
7.0 Section 2513(b) [of the Health Care Decision Act
(Code of Delaware), Chapter 25, Title 16 of the Delaware
Code] makes willful concealment, destruction, falsification
or forging of an advance directive, without the individual's
or authorized decision maker's consent, a class C felony.
8.0 Field Termination
8.1 Nothing in these regulations shall [affect effect] the
power of EMS providers to do the paramedic field
termination of resuscitation protocol as approved by the
Delaware Board of Medical Practice.
[8.2 A life-sustaining procedure may not be withheld
or withdrawn from a patient known to be pregnant, so
long as it is probable that the fetus will develop to be
viable outside the uterus with the continued application
of a life-sustaining procedure. (70 Del. Laws, c.392, § 3.)]
9.0 Protocol
9.1 The Division of Public Health, in consultation with
the Board of Medical Practice and the Delaware Fire
Prevention Commission, shall develop and publish a
protocol for EMS providers to comply with the requirements
of this regulation.
10.0 Limitations of Liability
10.1 In addition to other immunity that may be
provided for in law, Section 2510 of [the Health Care
Decisions Act Title 16 of the Delaware Code] provides the
specific immunity in cases involving the provision,
withdrawal, or withholding of care which may be life
sustaining in nature.
10.1.1 EMS providers are not subject to criminal
prosecution or civil liability or deemed to have engaged in
unprofessional conduct as determined by the appropriate
licensing, registering, or certifying authority as a result of
withholding or withdrawing any healthcare under
authorization obtained in accordance with [the Health
Decisions Act. Title 16, Chapter 25 of the Delaware
Code.]
11.0 Data Collection/Program Evaluation
11.1 The Division of Public Health shall provide
appropriate information, education and training on the EMS
PACD Program to health care providers.
11.2 The Division of Public Health shall provide
forms for Delaware licensed physicians and hospices, or
other authorized health care providers.
11.3 The Division shall monitor the use of EMS
PACDs as presented to EMS providers.
11.4 The Division shall take such measures as
necessary to assure individual confidentiality.
12.0 Reciprocity
12.1 Standardized EMS [DNR Do Not Resuscitate
(DNR) orders] from another State approved by the Director
of the Division of Public Health shall be honored.
12.2 EMS providers shall treat out-of-state EMS
DNR['s orders] as Limited (Palliative) Care Only Before
Arrest PACD individuals, [unless otherwise specified by
the out-of-state Do Not Resuscitate (DNR) order.]
DIVISION OF PUBLIC HEALTH
Statutory Authority: 16 Delaware Code,
Section 122(3)(c) (16 Del.C. §122(3)(c))
ORDER
Regulations Governing Public Drinking Water Systems
Nature Of The Proceedings:
Delaware Health and Social Services ("DHSS")
initiated proceedings to adopt Rules and Regulations
Governing Public Drinking Water Systems. The DHSS
proceedings to adopt regulations were initiated pursuant to
29 Delaware Code, Chapter 101 and authority as prescribed
by 16 Delaware Code Chapter 1, Section 122 (3) c.
On March 1, 2003 (Volume 6, Issue 9), DHSS published
in the Delaware Register of Regulations its notice of
proposed regulations, pursuant to 29 Delaware Code,
Section 10115. It requested that written materials and
suggestions from the public concerning the proposed
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 95
regulations be delivered to DHSS by April 4, 2003, or be
presented at a public hearing on April 1, 2003, after which
time DHSS would review information, factual evidence and
public comment to the said proposed regulations. The public
comment period was extended to April 30, 2003, to allow
additional time for comments.
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 March 1, 2003, 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 Public Drinking Water
Systems are adopted and shall become effective July 10,
2003, after publication of the final regulation in the
Delaware Register of Regulations.
Vincent P. Meconi, Secretary, 6/13/2003
Summary Of Evidence
A public hearing were held on April 1, 2003, in the
Emergency Preparedness Training Center, Suite 4-g, Blue
Hen Corporate Center, 655 S. Bay Road, Dover, Delaware,
before David P. Walton, Hearing Officer, to discuss the
proposed amendments to the Delaware Rules and
Regulations Governing Public Drinking Water Systems.
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. Edward Hallock, Administrator of the
Office of Drinking Water, Division of Public Health, made
the agency's presentation. Attendees were encouraged to
discuss and ask questions regarding the proposed
amendments. No comments were made during the public
hearing and only two organizations (Artesian Water
Company, Inc. and U.S. EPA) submitted written comments
during the public comment period.
Comments and the DHSS (Agency) responses follow:
• Section 22.214(B)(4):Will the Division of Public
Health (DPH) notify water companies when a
laboratory loses its certification?
Agency Response: Annual lists of certified in-state
laboratories will be published July 1 of each year.
Additionally, Section 22.214 (A) requires certified
laboratories to be in compliance with the latest edition of the
"Manual for the Certification of Laboratories Analyzing
Drinking Water." This manual requires certified
laboratories to notify its customers regarding their status,
i.e., fully certified, provisionally certified or not certified.
• Section 22.214(C)(1):Total coliform sample
results are not referred to in this section. Was
this an oversight, or is the laboratory not
required to report positive total coliform results
to the Office of Drinking Water (ODW)?
Agency Response: Laboratories are not required to
report total coliform positive results. They are only required
to report E. coli or fecal positive results.
• Section 22.215:Where is the term "Hazard
Quotient" defined? While it is agreed that
interim health-based standards are occasionally
required to ensure protection of public health; it
is suggested that some flexibility should be
incorporated into the proposed regulation.
Agency Response: As a result of this comment and
further study, a definition of Hazard Quotient has been
added to this section. Additionally, this section has been
modified to include a range of values for interim healthbased
standards.
• Section 22.302:Clarification is needed on
"notification by the Division". Will the "45-day
clock" begin after the physical completion of the
sanitary survey or after the system receives the
Sanitary Defect Letter?
Agency Response: The 45-day clock will begin with
receipt of the letter by the water system, not the day the
sanitary survey is complete. However, when water systems
are made aware of a problem at the same time of the sanitary
survey we would expect them to begin corrective actions as
soon as possible.
• Section 22.607(C)(7):There is no mention of
sampling frequency in this section.
Agency Response: This section does in fact identify
how to calculate "daily values" and therefore does indicate
sampling frequency as daily.
• Section 22.607(J)(1)(a)(8):It is requested that
DPH be required to specify in writing if they
want data prior to the end of a monitoring
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
96 FINAL REGULATIONS
period and to provide written rationale for the
request. Such a written record would serve to
avoid possible errors and confusion.
Agency Response: The request for more frequent
reporting requirement would only be made if the DPH had
specific concerns regarding monitoring results from a water
system. The increased reporting frequency would then be
worked out with the water system and the rationale for the
decision would be provided in writing.
• Section 22.1012:Although this section is part of
the Surface Water Treatment Rule, does it apply
to ground water systems employing filtration
(i.e. greensand, slow or rapid sand) that recycle
backwash water?
Agency Response: The recycle provisions do not apply
to groundwater systems using filtration technology. The
concern with recycled water in surface water systems is the
potential build up of pathogens such as Giardia and
Cryptosporidium in the recycled water. By requiring
systems to recycle to the head of the plant it is felt that this
will minimize the chances of these organisms "breaking
through" to the finished water. Groundwater systems do not
have the same concerns with these organisms.
There were other grammatical, formatting and citation
corrections as a result of comments from the U.S. EPA.
None of these corrections or the recommended changes
herein are considered substantive in nature.
The public comment period was open from March 1,
2003 to April 4, 2003. The public comment period was
extended till April 30 2003, to allow additional time for
comments.
Verifying documents are attached to the Hearing
Officer's record. The Delaware Attorney General's office
and the Cabinet Secretary of DHSS have approved this
regulation.
Summary of Changes from Proposed to Final
Regulations Governing Public Drinking Water Systems
22.215 - A definition of Hazard Quotient was added to
the end of this section.
22.413(A) - the citation for Tier 3 violations of the
Inorganic Chemicals was changed to reflect the correct
section.
22.413(G) and (H) - Sections added to clarify the
responsibilities of operators of consecutive water supplies
and that public notices may be issued to a portion of a
distribution system if it is physically or hydraulically
separated from the rest of the system.
22.601(A) - A minor clarification to the arsenic
standard was made to reflect EPA's requirement that the
standard is 0.010 mg/L, effective January 23, 2006.
22.602 - Moved language that sets detection limits for
analytical methods in accordance with EPA requirements
from 22.602(A)(4)(a).
22.602(C)(9) - added language to clarify when existing
systems that add a new source of water must meet MCL
requirements.
22.924(B)-(E) - Sections added to clarify analytical
requirements under the radiological standards.
* PLEASE NOTE: DUE TO THE SIZE OF THE FINAL
REGULATION ONLY A SUMMARY IS BEING PRINTED HERE.
THE FULL TEXT IS AVAILABLE FROM EITHER THE DIVISON
OF PUBLIC HEALTH OR THE REGISTRAR'S OFFICE.
ADOBE ACROBAT PDF VERSION:
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code, Section
107 (31 Del.C. §107)
ORDER
Fair Hearing Practices and Procedures
Nature Of The Proceedings:
Delaware Health and Social Services ("Department") /
Division of Social Services (DSS) initiated proceedings to
amend the Division of Social Services Manual (DSSM) to
make several clarifying changes to DSS Fair Hearing
Practices and Procedures. 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 May 2003 Delaware Register of Regulations,
requiring written materials and suggestions from the public
concerning the proposed regulations to be produced by May
31, 2003 at which time the Department would receive
information, factual evidence and public comment to the
said proposed changes to the regulations.
Summary Of Proposed Revisions
DSSM 5100 Legal Base
The proposal removes references to some now repealed
Titles of the Social Security Act and adds a reference to Title
XXI of the Act, State Children's Health Insurance Program
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 97
(SCHIP).
DSSM 5304 Jurisdiction
The proposal removes an ineffective reference to the
"assignment of cases" into TANF (Temporary Assistance to
Needy Families). This removal is needed because TANF is
no longer a "demonstration program." Cases are no longer
"assigned" into TANF.
DSSM 5312 Responses to Hearing Requests
The proposal adds a description of the "presenter's" role
in a fair hearing and is proposed in order to clarify the prehearing
role of the presenter (See §5407) at a fair hearing
and to assure that the §5312 hearing summary will be able to
be offered as evidence at the hearing by the maker of the
document.
DSSM 5402 Hearings on Decisions
The proposal makes a change to a typographical error in
the text.
DSSM 5403 Availability of Documents and Records
The proposal changes the responding party to a request
for documents for a fair hearing from the hearing officer to
the "office that maintains the records." This is needed
because the Division of Social Services contracts some
hearing officer services. The contractors do not have
physical access to the records that may be requested. The
office that maintains the records can respond to a request for
a record more effectively than a contractor.
DSSM 5405 Fair Hearing Procedures
The proposal adds the statement that "Witnesses [at a
fair hearing] may be sequestered with the approval of the
hearing officer." The statement is being added to reflect the
agency's current fair hearing practice.
Summary Of Comments Received With Agency
Response And Explanation Of Changes
• The Governor's Advisory Council For
Exceptional Citizens (GACEC), the Delaware
Developmental Disabilities Council (DDDC),
and the State Council for Persons with
Disabilities (SCPD) offered the following
summarized observations:
First, DSS clarifies the application of the regulations to
disputes in the federal CHIP (Title XXI)/State Delaware
Healthy Children Program context. This is desirable
clarification and we endorse this clarification.
Agency Response: DSS thanks you for the
endorsement.
• Second, DSS intends to clarify the "presenter's
role" to "assure that §5312 hearing summary
will be offered as evidence". This is overbroad.
Based on Third Circuit precedent [Ortiz v
Eichler, 794 F.2d 889 (3rd Cir.1986)], hearsay is
not admissible in the DSS fair hearings. See also
In the matter of Lewis B.C., 1999 WL 692071
(Del. Fam. May 12, 1999) at 8-9 (summarizing
Delaware caselaw holding contents of statutorily
required reports subject to hearsay objection).
A hearing summary may sometimes qualify for
admission, in whole or in part, if it meets the
standards of an exception to the hearsay rule
(e.g. Business record). However, this must be
made on a case-by-case basis by the hearing
officer, if there is an objection to its admission,
in whole or in part. For example, if a hearing
summary submitted by an MCO contains double
hearsay (e.g. MCO worker summarizes his
version of telephone conversation with
beneficiary's physician), this should not be
routinely admitted. DSS cannot categorically
authorize admission by regulation since this is
proscribed by the Third Circuit.
Agency Response: DSS finds the written comments on
the role of the presenter to be instructive. However, that
section is not the subject of the proposed rule. Since the role
of the presenter is not the subject of the proposed rule, DSS
has not made any changes in the presenter's role. The
comment is noted and will be considered if and when that
section of the rule is revised.
• Third, DSS changes the recipient of requests for
pre-hearing access to records. Requests are to
be submitted to the "office that maintains the
records" rather than the hearing officer. If the
office does not produce the records "within a
reasonable period of time", the appellant may
ask the hearing officer for a directive to produce
the records. See proposed §5403. We have no
objection to changing the recipient of records
requests to the "office that maintains the
records". However, the "reasonable period of
time" standard invites delay and problems.
MCOs and DSS contractors do not uniformly
comply with solicitations for access to records.
As a practical matter, the agency must compile
and organize its records in order to submit its
hearing summary to the hearing officer within
five (5) working days of the request for hearing.
See §5312(4). The agency should be able to
produce the records within the same time
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
98 FINAL REGULATIONS
period, i.e., five (5) working days. This standard
should be incorporated into §5403. By
promoting prompt access to records based on a
clear standard, the 5-business day benchmark
would facilitate the timely and orderly
administration of the fair hearing system by
reducing the need for continuances (prompted
by unreasonable delays) and applications to the
hearing officer who must otherwise determine
"reasonable time" on a case-by-case basis.
MCOs will simply argue that a 20-30 business
day is a reasonable time.
Agency Response: DSS has considered the comment
and as a result, has revised or adopted time limits under
§5403, §5312(4) and §5312(f)(b).
• Fourth, we believe hearing officers forward the
hearing summary to appellants when issuing the
notice of hearing. However, this is not explicit in
the final paragraph of §5312. It could be made
explicit to mirror current practice. An even
better approach would be to require the agency
to submit the hearing summary to the appellant
at the same time it is submitted to the hearing
officer. This could be accomplished by
amending Section 5312 (4) by inserting "and
appellant or representative" after "Hearing
officer" in the first sentence and amending
Section 5312(f)(c) by adding "and appellant or
representative" after "hearing office". This
would facilitate settlements and prompt
preparation of cases, reducing the prospects for
continuances.
Agency Response: DSS has adopted the suggestion that
§5312 make explicit the practice of sending the hearing
summary to appellants when the hearing is scheduled. DSS
has not adopted the suggestion that the agency send the
summary to appellants as well. DSS views sending hearing
summaries twice as unnecessarily redundant.
Findings Of Fact:
The Department finds that the proposed changes as set
forth in the May 2003 Register of Regulations should be
adopted.
THEREFORE, IT IS ORDERED, that the proposed
regulation to amend DSS Fair Hearing Practices and
Procedures is adopted and shall be final effective July 10,
2003.
Vincent P. Meconi, Secretary, DHSS, 6/13/03
5100 Legal Base
Public Assistance benefits are authorized under the
various categorical programs established under Title 31 of
the Delaware Code, under the Food Stamp Act, as amended,
and under Titles IV- A, XVI, XIX, and XX, and XXI of the
Social Security Act and under regulations, not inconsistent
with these laws promulgated by the State or federal
governments.
5304 Jurisdiction
An opportunity for a hearing will be granted to any
applicant who requests a hearing because his/her claim for
economic or medical assistance or food stamp assistance is
denied or is not acted upon with reasonable promptness and
to any recipient who is aggrieved by any action of the
Division of Social Services such as actions to reduce benefits
or to assign Food Stamp Program recipients to a specific
employment and training component.
To be considered, a request for a hearing must be a clear
expression in writing by the appellant or his/her
representative to the effect that (s)he wants the opportunity
to present his/her case to higher authority.
Only issues described in the notice of action sent to the
appellant or issues fairly presented in the appellant's request
for a fair hearing or in the Division's response in its hearing
summary may be presented for the hearing officer's review at
the hearing.
Appellants of actions taken in the Food Stamp Program
may request a fair hearing orally, and, if so, will be informed
that it is advisable to perfect the request by reducing it to
writing. The staff member receiving an oral request will
initiate procedures to begin the hearing process.
The freedom to make a request for a hearing will not be
limited or interfered with in any way. The Division may
provide assistance to appellants such as providing translators
or a non-English explanation of the hearing process when
required by federal regulations.
Except in the Food Stamp Program, a hearing need not
be granted when either State or federal law requires
automatic grant adjustments for classes of recipients, unless
the reason for an individual appeal is incorrect grant
computation.
A hearing may not be granted on the assignment of
cases into DELAWARE'S TEMPORARY ASSISTANCE
FOR NEEDY FAMILIES program or the exclusion of cases
from DELAWARE'S TEMPORARY ASSISTANCE FOR
NEEDY FAMILIES program. The worker may respond to
such requests by asking the hearing officer to dismiss the
request when completing a hearing summary. (See §5312.)
5312 Responses to Hearing Requests
1) Upon receipt of a request for a hearing, either orally
in the Food Stamp Program or in writing, a fair hearing
summary will be prepared in response to the request. The
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 99
presenter (§5407) is expected to write and sign the Hearing
Summary.
2) A fair hearing summary is a document prepared by
the agency stating the factual and legal reason(s) for the
action under appeal.
3) The purpose of the hearing summary is to state the
position of the proponent of the action in order to provide the
appellant with the necessary information to prepare his/her
case.
4) Preparation of hearing summary - On receipt of a
request for a fair hearing, the agency shall prepare and
submit a hearing summary to the Hearing Office within five
(5) working days. The document must be easily read and
understood (abbreviations should be avoided). Actions in
the matter being appealed should be explained in concise
statements and include citations to the policy upon which the
action is based. The names and addresses of persons that the
agency expects to call to testify will be included in the
hearing summary.
5) Format of the hearing summary - The fair hearing
summary shall be labeled at the top and signed and dated at
the bottom. It shall contain the following:
a) Identifying information - Give the client's
name, the client's address, and the DCIS identification
number.
b) Client's reason for appeal - This section shows
the basis of the client's appeal (rejection, reduction, closure,
amount of benefits etc...)
c) Action taken - This section is used to describe
the specific action taken by the agency as well as the factual
basis for its decision.
d) Has assistance continued? - This section
identifies whether or not the appellant's assistance has been
restored because the appellant filed a request for a hearing
within the timely notice period.
e) Cite policy basis - This purpose of this section
is to cite the specific State rules supporting the action taken.
f) Persons expected to testify - This section lists
the names and addresses (if any) of persons that the agency
expects to call to testify.
If completed by DSS, the worker will submit the
case to his/her supervisor. The supervisor will:
a) Provide an adequate case review;
b) Correct any errors;
c) Forward request/summary together with
any documents to be [offered for admission admitted] at
the hearing to the agency or DSS hearing office.
Note: If a section is not applicable, the designation
"N/A" may be used.
As soon as the request/summary is received, it is recorded in
an appeal calendar and immediately forwarded to the hearing
officer. Upon review, the hearing officer will:
a) Set a prompt date for the hearing;
b) Send a notice conforming to the requirements of
§5311. [The notice will include the hearing summary.]
c) Notify all parties, including witnesses, of the date,
time, and place of the hearing.
5402 Hearings on Decisions
A hearings may encompass decisions concerning:
1) Eligibility for financial or medical assistance in
both initial and subsequent determinations;
2) The amount of economic or medical assistance or a
change in the amount of the benefits;
3) The manner or form of the benefit including
restricted or protective benefits;
4) A denial of a request for restoration of food stamp
benefits lost more than ninety (90) days but less than one
year prior to the request;
5) A decision of an MCO or other contractor that a
medical service, treatment or test is not medically or
otherwise necessary.
In addition,
6) At any time within a certification period, a
household may dispute its current level of food stamp
benefits; and
7) Food Stamp Program households may appeal
decisions concerning expedited service.
5403 Availability of Documents and Records
Prior to the hearing, the appellant and his/her
representative will have adequate opportunity to examine all
documents and records to be used by the State agency or its
agent at the hearing and to examine the claimant's case
records. Requests by the appellant or his/her authorized
representative for records and documents between the
request for a hearing and the hearing should be directed to
the office that maintains the records. hearing officer. If the
office does not produce the records within [a reasonable
period of time five working days], the requestor may ask
the hearing officer to order the production of the records.
There is no charge for copies of records and documents
requested for a fair hearing. Documents relating to the case
will be provided to a claimant or a household provided that
confidential information is protected from release.
5405 Fair Hearing Procedures
1) Hearing Officer's Introduction
The hearing officer will appropriately introduce the
purpose of the meeting, the individuals and roles of those in
attendance, and generally "set the stage" to assure the
appellant of his/her right to be heard. In addition, (s)he will
administer an oath to all witnesses and parties presenting
testimony at the hearing. The hearing officer may, in his/her
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100 FINAL REGULATIONS
discretion, deal with any preliminary matters prior to
beginning the case.
2) Manner of Proceeding
The hearing officer shall conduct the hearing in an
informed fashion, consistent however with the procedural
rights of the Department and the claimant to a courteous,
fair, and fairly conducted hearing consistent with due
process and the requirements of the federal regulation.
Parties will be courteous to each other and the hearing
officer at all times and will obey the orders and rulings of the
hearing officer.
3) Order of Presentation
a) Opening Remarks.
At the discretion of the hearing officer, the
Department and the claimant will each be given an
opportunity to make brief opening statements. An opening
statement shall advise the hearing officer of the issues a
party contends are a part of the case and shall succinctly
summarize how the party's case will be proven. The hearing
officer may, however, terminate or limit any opening
statement which is unduly lengthy, repetitive or irrelevant.
b) The State will present its case first, unless, in the
discretion of the hearing officer, the burden of persuasion
rests on the other party (the claimant). This shall include the
presentation of all witnesses to give testimony and all
documents and other evidence which is admissible to prove
its case. The other party may cross- examine each witness
and may raise any legal basis for exclusion of any evidence
at appropriate times during the hearing. Witnesses may be
sequestered with the approval of the hearing officer.
c) The other party may present any witnesses to give
testimony (and may testify his/herself) and other evidence
which is admissible to prove his/her/its case. However, such
party need not present any evidence, but may rely upon the
other party's failure to prove an essential element of his/her/
its case. If evidence or testimony is presented, the other
party shall have the opportunity to raise any legal basis for
its exclusion and the opportunity to cross examine witnesses
at the appropriate time during the proceeding.
d) If the second party has presented any evidence, the
first party may, in the discretion of the hearing officer,
present rebuttal evidence.
e) Closing Remarks.
The parties will be given an opportunity to briefly
summarize their cases in closing remarks. Such closing
remarks may summarize evidence and present legal
argument for the adoption of one position against the
adoption of the other. However, the hearing officer may
limit or terminate unduly lengthy, repetitive, or irrelevant
closing remarks.
4) Role of Hearing Officer
The hearing officer is in charge of running the hearing.
He/she shall make all rulings on the admissibility of
evidence as to how the proceedings are conducted. The
hearing officer may question witnesses or direct the parties
to produce evidence which he/she determines to be
necessary for him/her to render a decision in the case.
However, other than ensuring that the hearing is conducted
fairly, the hearing officer is not permitted to assist either
party in the presentation of his/her/its case.
5) Decisions of the Hearing Officer
Decisions of the State hearing officer will be based
exclusively on evidence introduced at the hearing. [The
decision of the hearing officer willbe issued not more
than 90 days from the date of the request for a fair
hearing is filed or more than 30 days from the date the
hearing is conducted.] The decision of the hearing officer is
the final decision of the agency. Judicial review, pursuant to
31 Del. C. 520, may be taken directly from the hearing
officer's decision, within thirty (30) days of the decision.
DEPARTMENT OF INSURANCE
18 DE Admin Code 1310
Statutory Authority: 18 Delaware Code,
Sections 311, 2304(16), and 2312 (18 Del.C.
§§311, 2304(16), and 2312)
ORDER
Regulation 1310
Standards For Prompt, Fair And Equitable Settlement
Of Claims For Health Care Services
Public hearings were held on December 3, 2002, March
26, 2003 and May 28, 2003 to receive comments on
proposed Regulation 1310 relating to the prompt payment of
health claims. By my order of October 2, 2002, Kathy S.
Gravell, Esquire, was appointed hearing officer to receive
comments and testimony on the proposed regulation. Public
notice of the hearing and publication of proposed Regulation
11 in the Register of Regulations and two newspapers of
general circulation was in conformity with Delaware law.
The summary of the evidence and the information
submitted as set forth in the Final Report and
Recommendation of the Hearing Officer is incorporated into
this Order. I adopt the findings of fact and recommendation
of the hearing officer and find that Regulation 1310 should
be amended by reducing the allowable time period in which
an insurer shall be required to pay a clean claim, that the
phrase "benefit due under the claim" be added to section 5.4
to clarify that the amount to be paid by the insurer on the
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
FINAL REGULATIONS 101
claim is consistent with the insurer's obligations under the
policy and that the form of the regulation should be changed
to conform to the format established by the Registrar of
Regulations.
Decision And Effective Date
I hereby adopt Regulation 1310 as modified by the
changes herein to be effective on August 1, 2003.
Text And Citation
The text of the proposed amendments to Regulation 10
last appeared in the Register of Regulations Vol. 6, Issue 11,
pages 1465-7, May 1, 2003.
Donna Lee H. Williams, Insurance Commissioner,
June 13, 2003
Regulation 1310
Standards For Prompt, Fair And Equitable Settlement
Of Claims For Health Care Services
1.0 Authority
1.1 This regulation is adopted by the Commissioner
pursuant to 18 Del. C. 311, 2304(16), and 2312. It is
promulgated in accordance with 29 Del. C. Chapter 101.
2.0 Definitions
For the purpose of this regulation, the following
definitions shall apply:
2.1 "Carrier" or "Health Insurer" shall have the same
meaning applied to it by 18 Del.
C. 3343(a)(1).
2.2 "Clean Claim" shall mean a claim that has no defect
or impropriety (including
any lack of any required substantiating documentation) or
particular circumstance requiring special treatment that
substantially prevents timely payments from being made on
the claim.
2.3 "Health Care Provider" shall mean any entity or
individual licensed, certified or otherwise permitted by law
pursuant to Titles 16 or 24 of the Delaware Code to provide
health care services.
2.4 "Policyholder," "Insured" or "Subscriber" shall be
a person covered under a health insurance policy or a
representative designated by such person and entitled to
make claims on his or her behalf.
3.0 Scope
3.1 This regulation shall apply to all health insurers as
defined in Section 2, and shall apply to all plans or policies
of health insurance or benefits delivered or issued for
delivery in this State and which cover residents of this State
or employees of employers located in this State and their
dependents. Exempted from the provisions of this regulation
are policies of automobile and workers compensation
insurance, hospital income and disability income insurance,
Medicare supplement and long-term care insurance.
4.0 Purpose
4.1 The purpose of this regulation is to ensure that
health insurers pay claims to policyholders and health care
providers in a timely manner. This regulation will establish
standards for both determining promptness in settling claims
and determining the existence of a general business practice
for failing to promptly settle such claims under 18 Del. C.
2304(16).
5.0 Prompt Payment of Claims
5.1 A health insurer shall pay the benefit due under a
clean claim to a policyholder or covered person, or make
payment to a health care provider no later than 45 30
calendar days after receipt of an electronically clean claim
for services. and no later than 45 calendar days after receipt
of a paper filed clean claim for services.
5.2 A claim is not a clean claim as defined in section
2.2 if any of the following
circumstances exist:
5.2.1 Where the obligation of a health insurer to
pay a claim or make a payment for health care services
rendered is not reasonably clear due to a good faith dispute
regarding the eligibility of a person for coverage, the liability
of another insurer or corporation for all or part of a claim, the
amount of the claim, the benefits covered under a contract or
agreement, or the manner in which services were accessed or
provided.
5.2.2 Where there exists a reasonable basis
supported by specific information, available for review by
the Department, that such claim was submitted fraudulently.
5.2.3 For claims properly disputed or litigated
and subsequently paid.
5.3 In those cases covered by section 5.2.1, a health
insurer shall pay all portions of a claim meeting the
definition of clean claim in accordance with section 5.1.
Additionally, a health insurer shall notify the policyholder in
writing within 30 days of the receipt of the claim:
5.3.1 that such carrier is not obligated to pay the
claim or make the medical payment, in whole or in part,
stating the specific reasons why it is not liable; or
5.3.2 that additional information is needed and
is being sought to determine liability to pay the claim or
make the health care payment.
5.4 Upon receipt of the information required by section
5.3.2, or upon the administrative resolution of a dispute
wherein the health insurer is deemed obligated to pay the
benefit due under the claim or make medical payment, a
health insurer shall make payment as required by section 5.1.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
102 FINAL REGULATIONS
6.0 General Business Practice
6.1 Within a 36 month period, three instances of a
health insurer's failure to pay a Claim or bill for services
promptly, as defined in section 5 above, shall give rise to a
rebuttable presumption that the insurer is in violation of 18
Del. C. 2304 (16)(f). In determining whether the
presumption is rebutted the Commissioner may consider,
among other things, whether the health insurer meets
nationally recognized timeline standards for claims
payments such as those applicable to the Medicare,
Medicaid or Federal Employees Health Benefit Plan
programs.
6.2 The 36 month time period established in section 6.1
shall be measured based upon the date the claims or bills
became due. Each claim or bill, or portion of a claim or bill,
pertaining to a single medical treatment or procedure
provided to an individual policyholder that is processed in
violation of this regulation shall constitute an "instance" as
described in section 6.1.
7.0 Penalties
7.1 In addition to the imposition of penalties in
accordance with 18 Del. C. 2312(b), the Commissioner may
order the health insurer to pay to the health care provider or
claimant, in full settlement of the claim or bill for health care
services, the amount of the claim or bill plus interest at the
maximum rate allowable to lenders under 6 Del. C. 2301(a).
Such interest shall be computed from the date the claim or
bill for services first became due.
8.0 Causes of Action
8.1 This regulation shall not create a cause of action for
any person or entity, other than the Delaware Insurance
Commissioner, against a health insurer or its representative
based upon a violation of 18 Del. C. 2304 (16).
9.0 Separability
9.1 If any provision of this regulation or the application
of any such provision to any person or circumstances, shall
be held invalid, the remainder of such provisions, and the
application of such provision to any person or circumstance
other than those as to which it is held invalid, shall not be
affected.
10.0 Effective Date
10.1 This regulation, as amended, shall become
effective on July August 1, 2003.
Adopted and signed by the Commissioner June 13,
2003.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
GOVERNOR'S EXECUTIVE ORDERS 103
STATE OF DELAWARE
EXECUTIVE DEPARTMENT
DOVER
EXECUTIVE ORDER
NUMBER FORTY-FOUR
RE: CREATING PRINCIPLES FOR
RESPONSIBLE INDUSTRY IN DELAWARE
WHEREAS, a healthy manufacturing sector is a vital
part of Delaware's economy; and
WHEREAS, long-term sustainability of the
manufacturing sector requires that manufacturers operate
their facilities responsibly, protecting their workers, the local
community and the environment; and
WHEREAS, Delaware does not currently have
adequate guidance for manufacturing facilities as to what
principles of operation are expected; and
WHEREAS, Delaware does not currently have a
program for facilities to make public commitments to
principles of operation;
NOW, THEREFORE, I, RUTH ANN MINNER, by
virtue of the authority vested in me as Governor of the State
of Delaware do hereby declare and order as follows, this 20th
day of May 2003:
1. The Principles for Responsible Industry in
Delaware are hereby created for the purpose of providing
guidance to the manufacturing facilities in Delaware as to
the principles of operation expected of facilities in Delaware.
2. The Principles for Responsible Industry in
Delaware are:
I. Managing through Systems Approaches
We are committed to the quality of our
products and our operations. We will utilize systems
approaches to the management of our facility, with the goals
of continuous improvement in both quality and
environmental management.
II. Community Involvement
We are committed to being part of the
community in which we are located. We will regularly
interact with the communities near our facility, both
informing and seeking advice from our neighbors. We will
notify, in a timely manner, everyone who may be affected by
conditions caused by our company that may negatively
affect health, safety or the environment.
III. Valuing and Protecting Our Workers
We are committed to the satisfaction,
development and well being of our employees. We will
enhance the development of and minimize the risks to our
employees through use of safe technologies, training,
operating procedures and by being prepared for
emergencies.
IV. Protecting the Environment and the
Community
We are committed to protecting the
environment and communities. We will reduce and make
continual progress toward eliminating the release of any
substance that may cause health or environmental damage.
We will reduce, and where possible eliminate wastes and
releases through source reduction. All waste will be handled
and disposed of safely and responsibly.
V. Conserving Energy
We are committed to reducing our energy
consumption. We will conserve energy and improve energy
efficiency of our operations and of the products we produce.
We will make every effort to use environmentally safe and
sustainable energy sources.
3. Adopting the Principles for Responsible Industry in
Delaware is voluntary. Facilities that choose to sign on shall
make commitments to specific actions implementing the
Principles for Responsible Industry in Delaware and shall
submit annual reports on their commitments. Commitment
shall be made at the facility level, by the facility manager,
although commitment from top corporate management is
highly encouraged.
4. Benefits may be provided to companies that
achieve substantial accomplishments under their
commitments and maintain excellent compliance records.
Benefits begin following submission and review of the first
annual report by the facility. Benefits will be offered on a
case-by-case basis depending upon the level of commitment
and achievement and the companyνs compliance record.
Benefits may be rescinded if a company does not maintain
an excellent compliance record or fails to make progress
under their commitments. Benefits may include such things
as fast track and/or flexible permitting, reduced inspection
schedules, awards and others.
Approved and Adopted, this 20th Day of May, 2003.
Ruth Ann Minner
Governor
Attest:
Harriet Smith Windsor
Secretary of State
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
104 GOVERNOR'S EXECUTIVE ORDERS
STATE OF DELAWARE
EXECUTIVE DEPARTMENT
DOVER
EXECUTIVE ORDER
NUMBER FORTY-FIVE
RE: AMENDMENT TO EXECUTIVE ORDER
NUMBER TWENTY REGARDING THE
STATE EMPLOYEES' CHARITABLE
CAMPAIGN
WHEREAS, by Executive Order Number 20, dated
September 13, 2001, I continued the Delaware State
Employees' Charitable Campaign, and created procedures
for the administration of the Campaign, including the
establishment of a Steering Committee; and
WHEREAS, it is deemed beneficial and in the best
interest of the State Employees' Charitable Campaign that
the Steering Committee be expanded to include an additional
four members, increasing the membership from eight to
twelve persons, to ensure broad-based participation in and
oversight of the Campaign.
NOW, THEREFORE, I, RUTH ANN MINNER, by
virtue of the authority vested in me as Governor of the State
of Delaware do hereby declare and order the following:
1. Executive Order Number 20 is hereby amended, by
striking Section III, Part A, in its entirety and replacing it
with the following paragraph:
"A. The Steering Committee is hereby
established and shall consist of twelve
members who shall be state employees and
who shall be appointed to serve at the pleasure
of the Governor. Of the members appointed,
there shall be at least one employee from each
of the three counties. In addition, one of the
appointees shall be an employee who is
represented by one of the unions under which
the employees of the State are organized; one
shall be an employee of the Department of
Finance recommended by the Secretary of
Finance; one shall be a representative from the
Governor's staff; and one shall be a
representative of the Lieutenant Governor's
staff."
2. Except as otherwise provided herein, all of the
provisions of Executive Order Number 20 shall remain in
full force and effect.
Approved and Adopted, this 28th Day of May, 2003.
Ruth Ann Minner
Governor
Attest:
Harriet Smith Windsor
Secretary of State
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
GOVERNOR'S APPOINTMENTS 105
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Advisory Council to the Division of Developmental
Disabilities Services
Board of Chiropractic
Board of Examiners for Nursing Home Administrators
Board of Funeral Services
Board of Geologists
Board of Landscape Architects
Board of Medical Practice
Board of Nursing
Board of Occupational Therapy
Board of Pharmacy
Board of Professional Land Surveyors
Child Placement Review Board-Kent
Child Placement Review Board-New Castle
Commission on the Purchase of Products and Services
for the Blind and Other Severely Handicapped
Individuals
Commission on Veterans' Affairs
Ms. Cheryl A. Coffin 5/12/2006
Mr. Hugh J. Kelly 5/12/2006
Mr. Robert Osgood 5/12/2006
Mr. Thomas E. Rust 5/12/2006
Mr. William T. Cowan, III 5/16/2006
Mr. Raymond L. Moore, Sr. 4/11/2005
Ms. Elizabeth Ann Happoldt 5/16/2006
Ms. Lillie Mae Johnson 4/22/2005
Ms. Mary Ann P. Stanley 5/16/2006
Mr. Lyle R. Dabson 5/12/2006
Mr. Steven M. Smailer 5/16/2006
Mr. Stephen N. Williams 1/7/2005
Ms. Lorene J. Athey 5/12/2006
Mr. John W. Banks 5/7/2005
Mr. Robert E. Lawson 5/16/2006
Ms. Pamela C. Zickafoose 5/16/2006
Ms. December E. Hughes 5/12/2006
Mr. Michael von Reider 5/12/2006
Mr. Joseph F. Gulla, III 7/1/2006
Mr. Christopher J. Tigani 7/1/2006
Mr. Victor F. Kennedy 5/12/2006
Ms. Ellen W. Holler 5/12/2006
Mr. Rodney C. Smith 5/12/2006
Ms. Andrea M. Alston 5/12/2006
Ms. Mary K. Field 5/12/2006
Ms. Elaine Laudenslager 5/12/2006
Ms. Jeanmarie Leonard 5/12/2006
Ms. Pamela Meyer 5/12/2006
Ms. Mary Ann Kwiatkowski 5/12/2007
Mr. Roger M. Levy 5/12/2007
Mr. Dominic E. Scatasti, Sr. 5/12/2007
Mr. Gary M. Morris 5/16/2007
Mr. Reese E. Phillips 5/16/2007
Mr. Arthur G. Samuelsohn 5/16/2007
Mr. George E. Webb 5/16/2007
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
106 GOVERNOR'S APPOINTMENTS
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Committee on Employment of People with Disabilities Ms. Margaret Rivera 5/16/2006
Committee to Review the Need for a Three Digit Number Mr. Thomas M. Jarrett
for Public Safety
Council on Correction
Council on Correction/Chair
Council of Delaware Association of Professional
Engineers
Council on Forestry
Council on Real Estate Appraisers
Council on Services for Aging and Adults with
Physical Disabilities
Council on Soil and Water Conservation
Court of Common Pleas/Commissioner
Delaware Bicycle Council
Delaware College Investment Plan Board
Delaware Gaming Control Board
Delaware Health Care Commission
Delaware Health Resources Board
Mr. James D. Burton 5/16/2006
Mr. James C. Hardcastle 5/16/2006
Reverend Tyrone C. Johnson 5/16/2006
Mr. Roger M. Levy 5/16/2006
Ms. Lois A. Myers 5/16/2006
Mr. Richard D. Senato 5/16/2006
Edward F. Crumlish, M.D. Pleasure of the
Governor
Mr. Paul E. Crawford 5/12/2007
Mr. George A. Barczewski 5/21/2006
Mr. Richard W. Bauermeister 5/12/2006
Ms. Azalia S. Briggs 5/19/2006
Mr. H. Wallace Cook 6/2/2006
Ms. Constance C. Holland 5/12/2006
Mr. Harry E. Hunsicker, III 5/12/2006
Hiram Lasher, DVM 5/12/2006
Ms. Barbara J. Sapp 5/12/2006
The Honorable Arlene M. Coppadge 5/23/2007
The Honorable Joseph W. Maybee 5/30/2007
Mr. Fred N. Breukelman 5/16/2006
Mr. William N. Spiker 5/23/2006
Mr. John Mancus 6/2/2008
Jacquelyne W. Gorum, DSW 5/16/2007
Mr. Robert F. Miller 5/16/2007
Mr. A. Herbert Nehrling, Jr. 5/16/2007
Mr. Timothy J. Constantine 5/12/2006
Ms. Linda S. Heller 5/12/2006
Mr. A. Herbert Nehrling, Jr. 5/12/2006
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
GOVERNOR'S APPOINTMENTS 107
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Delaware Institute of Dental Education & Research/
Board of Directors
Delaware Nursing Home Residents Quality Assurance
Commission
Delaware River and Bay Authority
Developmental Disabilities Council
Diamond State Port Corporation Advisory Board
Family Court/Chief Judge
Family Court/Commissioner
Governor's Council on Agriculture
Governor's Task Force on School Libraries
Human Relations Commission
Ms. Melanie K. Sharp 5/12/2006
Ms. Thelma G. Mayer 5/12/2006
Mr. Brian L. Posey 5/12/2006
Mr. Thomas J. Cooper 7/1/2007
Mr. William E. Lowe, III 7/1/2007
Mr. F. Michael Parkowski 7/1/2006
Linda D. Barnett, Ph.D. 5/16/2006
Ms. Paula J. Burdette 5/16/2006
Ms. Bethel Chang 5/16/2006
Ms. Theda M. Ellis 5/16/2006
Ms. Karen Gallagher 5/19/2006
Mr. Brian Hartman 5/16/2006
Mr. Larry D. Henderson 5/16/2006
Ms. Brenda S. Kramer 5/16/2006
Mr. Matt Petke 5/16/2006
Ms. Helen C. Skinner 5/16/2006
Ms. Jamie L. Wolfe 5/16/2006
Mr. Ira W. Spencer 5/16/2005
The Honorable Chandlee J. Kuhn 6/4/2015
The Honorable John R. Carrow 5/15/2007
The Honorable M. DeSales Haley 5/15/2007
The Honorable Carolee M. Grillo 5/15/2007
The Honorable Mary Ann Herlihy 5/15/2007
The Honorable Pamela D. Holloway 5/21/2007
The Honorable Frederic H. Kenney 5/15/2007
The Honorable Martha F. Sackovich 5/15/2007
The Honorable Patricia T. Stewart 5/15/2007
Mr. Dale J. Ockels 5/16/2006
Mr. Richard G. Papen 5/16/2006
Mr. Richard L. Sapp 5/16/2006
The Honorable James P. Neal Pleasure of the
Governor
Ms. Katharine V. Cropper 5/12/2007
Ms. Bernice M. Edwards 5/12/2007
Mr. Ralph A. Figueroa 5/12/2007
Ms. Marian L. Harris 5/12/2007
Ms. Shirley C. Horowitz 5/12/2007
Mr. Douglas T. James 5/12/2007
Ms. Christine L. Kraft 5/12/2007
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
108 GOVERNOR'S APPOINTMENTS
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
New Castle County/Justice of the Peace
Organ and Tissue Donor Awareness Board
Partnership for the Delaware Estuary/Board of
Directors
State Board of Examiners of Psychologists
State Employee Benefits Advisory Council
State Rehabilitation Advisory Council
Superior Court/Commissioner
Supreme Court Justice
University of Delaware/Board of Trustees
Workforce Investment Board
Ms. Susan E. Cline 6/4/2007
Ms. Linda L. Jones 5/12/2006
The Honorable John Hughes Pleasure of the
Governor
Martha B. Boston, Ph.D. 5/12/2006
Gordon J. DiRenzo, Ph.D. 5/12/2006
Mr. Frank E. Szczuka, Jr. 5/12/2006
Colonel Robert D. Welsh 5/12/2006
Mr. Glenn C. Allen 5/16/2004
Ms. Christine M. Long 5/16/2006
Ms. Sandra A. Reyes 5/16/2005
Mr. Edwin A. Tos 5/16/2006
Mr. Mark A. Chamberlin 5/12/2006
The Honorable Andrea M. Freud 6/4/2007
Ms. Alicia B. Howard 5/28/2007
The Honorable Michael P. Reynolds 5/16/2007
The Honorable Jack B. Jacobs 6/4/2015
H. Wesley Towers, Jr., VMD 5/8/2009
Mr. John N. Austin Pleasure of the
Governor
Mr. Bruce C. Crouch Pleasure of the
Governor
Ms. Stacy B. Griggs Pleasure of the
Governor
Mr. Richard D. Howard Pleasure of the
Governor
Mr. James D. Randall Pleasure of the
Governor
Mr. Benjamin T. Shaw Pleasure of the
Governor
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
CALENDAR OF EVENTS/HEARING NOTICES 109
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF ACCOUNTANCY
PUBLIC NOTICE
The Board issues these proposed rules pursuant to 24
Del.C. §105(1) and 29 Del.C. §10115. The Board will
accept written comments from July 1, 2003 through July 30,
2003. The Board will hold a public hearing on the proposed
amendments on July 23, 2003 at 8:30 a.m. in the second
floor conference room in the Division of Professional
Regulation, Cannon Building, 861 Silver Lake Boulevard,
Suite 203, Dover, DE 19904-2467. Written comments
should be submitted to Sheila Wolfe, Administrative
Specialist, Division of Professional Regulation, at the same
above-listed address.
The Board proposes to amend the Rule 5.2 to delete the
provision that currently permits a person to take the CPA
examination if the applicant expects to meet the Board's
education requirements within 120 days of taking the
examination. The Board proposes a new Rule 11.8,
Computer Based Examinations to provide the rules
governing the administration of the computer based
examination for the Uniform CPA examination including the
period within which an applicant may sit for the examination
and the provisions for conditional credit for persons
previously taking the paper-and-pencil examination.
Michael F. McTaggart
Deputy Attorney General
STATE BOARD OF EDUCATION
The State Board of Education will hold its monthly meeting
on Thursday, July 17, 2003 at 1:00 p.m. in the Townsend
Building, Dover, Delaware.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
PUBLIC NOTICE
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 107, Delaware Health and Social Services (DHSS) /
Division of Social Services / Medicaid/Medical Assistance
Program is proposing to amend the Title XIX Medicaid State
Plan and the Division of Social Services Manual (DSSM) to
establish the provisions relating to imposing and collecting
copayments for pharmaceutical services from Medicaid/
Medical Assistance clients.
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 Sharon L. Summers, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware 19720-0906 by July 31, 2003.
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.
DIVISION OF SOCIAL SERVICES
PUBLIC NOTICE
MEDICAID/MEDICAL ASSISTANCE STANDARDS
FOR PAYMENT OF RESERVED BEDS DURING
ABSENCE FROM LONG-TERM CARE FACILITIES
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and under the authority of Title 31 of the
Delaware Code, Chapter 5, Section 107, Delaware Health
and Social Services/Division of Social Services (DHSS/
DSS) publishes this notice pursuant to federal law and
regulations in 42 CFR §§447.40 and 447.205. Under
Medicaid payment regulations in 42 CFR §447.40, federal
financial participation (FFP) is available if a State plan
includes provision for bed-reservation payments during a
recipient's temporary absence from an inpatient facility.
Current state plan provision required Medicaid to make
payments to long term care facilities to ensure a bed is
reserved for a Medicaid recipient who is temporarily absent
from the long-term care facility due to hospitalization or
leave of absence. Bed reservation payments are limited to
fourteen (14) days per hospitalization in any 30-day period.
This notice is being given to provide information of public
interest with respect to the intent of DSS to amend the
Division of Social Services Manual (DSSM) and to submit
to the Centers for Medicare and Medicaid Services (CMS)
an amendment to the Title XIX Medicaid State Plan to
reduce "bed hold days" from fourteen (14) to seven (7) days
per hospitalization in any 30-day period, effective October 1,
2003.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning this notice must submit same to Sharon
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
110 CALENDAR OF EVENTS/HEARING NOTICES
L. Summers, Policy and Program Implementation Unit,
Division of Social Services, P.O. Box 906, New Castle,
Delaware 19720-0906 by July 31, 2003.
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.
DIVISION OF SOCIAL SERVICES
PUBLIC NOTICE
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 107, Delaware Health and Social Services (DHSS) /
Division of Social Services / Food Stamp Program is
proposing to amend its policy as it relates to the food stamp
benefits to certain qualified aliens. These mandatory
provisions must be implemented on October 1, 2003, in
accordance with Title IV of the Farm Security and Rural
Investment Act of 2002.
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 Sharon L. Summers, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware 19720-0906 by July 31, 2003.
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.
DIVISION OF SOCIAL SERVICES
PUBLIC NOTICE
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 107, Delaware Health and Social Services (DHSS) /
Division of Social Services / Food Stamp Program is
proposing to amend its policies in the Division of Social
Services Manual (DSSM) as it relates to anticipating income
and reporting changes. These mandatory provisions will be
implemented on October 1, 2003.
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 Sharon L. Summers, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware 19720-0906 by July 31, 2003.
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.
DIVISION OF SOCIAL SERVICES
PUBLIC NOTICE
Transitional Medicaid 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 107, Delaware Health and Social Services (DHSS) /
Division of Social Services / Medicaid/Medical Assistance
Program is proposing to amend the policy of the Transitional
Medicaid Program in the Division of Social Services Manual
(DSSM).
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 Sharon L. Summers, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by July 31, 2003.
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.
HUMAN RELATIONS COMMISSION
PUBLIC NOTICE
The Human Relations Commission in accordance with 6
Del.C. §4506 has proposed changes to Rule 10 and Rule 27
implemented under the Equal Accommodations Act. The
changes clarify that a party or the Division of Human
Relations can move to dismiss a complaint before a hearing
when the Commission lacks jurisdiction or the complaint
does not allege facts to state a claim under the statute. The
dismissal order can be appealed to court.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
CALENDAR OF EVENTS/HEARING NOTICES 111
In addition, the proposed changes toll the time for an
appeal if there has been an application for reconsideration
after a panel hearing. Tolling the appeal time is consistent
with the rules of the courts and other administrative
agencies.
A public hearing will be held at 7:00 p.m. on August
14, 2003 in Room 204 of the MBNA Building, Delaware
State University, Rte.13, Dover, Delaware where members
of the public can offer comments. Anyone wishing to
receive a copy of the proposed rules and regulations may
obtain a copy from the Division of Human Relations at the
Carvel State Building, 820 North French St., 4th Floor,
Wilmington, DE 19802. Persons wishing to submit written
comments may forward these to the Commission at the
above address. The final date to receive written comments
will be at the public hearing.
The Commission will consider promulgating the
proposed regulations at its regularly scheduled meeting
following the public hearing.
MERIT EMPLOYEE RELATIONS
BOARD
PUBLIC NOTICE
PROPOSED CHANGES TO
STATE OF DELAWARE MERIT RULES
PLEASE TAKE NOTICE that on May 28, 2003,
pursuant to 29 Del.C. §5914 and 29 Del.C. ch 101, extensive
proposed changes to the Merit Rules of the State of
Delaware have been transmitted to the Merit Employee
Relations Board ("MERB") from the Director of the Office
of State Personnel ("Director").
The proposed changes, which the Director indicates
have been approved by both the Director and by the
Statewide Labor-Management Committee, will significantly
repeal many existing Merit Rules and substitute in their
place new and revised Merit Rules.
This is a significant revision and restatement of the
Merit Rules of the State of Delaware. Copies of the
proposed deletions and new Merit Rules are available for
public inspection by appointment in the MERB office. The
proposed deletions and additions may also be viewed on the
Internet by visiting the Delaware State Personnel Web Site.
The direct link is: http://www.delawarepersonnel.com/
employee/documents/mrules_merb1.pdf
On September 18, 2003, the MERB will conduct a
Public Hearing concerning the proposed Merit Rule changes
(both the proposed repeal and the new Rules) submitted by
the Director. The hearing will begin at 9:00 a.m. in the 2nd
Floor Conference Room of the Margaret M. O'Neill
building, 410 Federal Street, Dover, Delaware.
The MERB also requests and will consider timely filed
written submissions from interested individuals and groups
concerning these proposed Merit Rule changes. The final
date for any such written submission is the date set forth
above for the public hearing. Any such submissions should
be mailed or delivered to the MERB at the following
address:
Merit Employee Relations Board
Margaret M. O'Neill Building, Suite 213
410 Federal Street, Box 4
Dover, DE 19901
PLEASE TAKE NOTE, pursuant to Del. C. §5914, the
changes as proposed by the Director will/shall become
final after the completion of the public hearing, unless
rejected by a majority of the members appointed to the
Board.
Anyone wishing to review the Director's written filing
with MERB or to present oral comments at the hearing
should call Ms. Jean Lee Turner in the Merit Employee
Relations Board office at (302) 739-6772.
DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
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DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003
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DELAWARE REGISTER OF REGULATIONS, VOL. 7, ISSUE 1, TUESDAY, JULY 1, 2003