Delaware RegisterRegulations ofIssue Date: July 1, 2008Volume 12 - Issue 1, Pages 1 - 87IN THIS ISSUE: Regulations: ProposedFinalGeneral NoticeCalendar of Events & Hearing NoticesPursuant to 29 Del.C. Chapter 11, Subchapter III, this issue of theRegister contains all documentsrequired to be published, andreceived, on or before June 16,2008. 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 The Delaware Register will publish any regulations that are proposed to be adopted, amended or repealed and any emergency regulations promulgated.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 •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: 9 DE Reg. 1036-1040 (01/01/06) Refers to Volume 9, pages 1036-1040 of the Delaware Register issued on January 1, 2006. 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and other interested parties may participate in the process by which administrative regulations are adopted, amended or repealed, and may initiate the process by which the validity and applicability of regulations is determined.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file notice and full text of such proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this title.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 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 DATECLOSING DATECLOSING TIME August 1July 15 4:30 p.m. September 1August 15 4:30 p.m. October 1September 15 4:30 p.m. November 1October 15 4:30 p.m. December 1November 17 4:30 p.m. DIVISION OF RESEARCH STAFF Deborah A. Porter, Interim Supervisor; Rochelle Yerkes, Administrative Specialist II; Kathleen Morris, Administrative Specialist I; Georgia Roman, Unit Operations Support Specialist; Alice W. Stark, Senior Legislative Attorney; Debbie Puzzo, Research Analyst; Judi Abbott, Administrative Specialist I; Jeffrey W. Hague, Registrar of Regulations; Steve Engebretsen, Assistant Registrar; Victoria Schultes, Administrative Specialist II; Ruth Ann Melson, Legislative Librarian; Deborah J. Messina, Print Shop Supervisor; Don Sellers, Printer; Bob Lupo, Printer. DELAWARE MANUFACTURED HOME RELOCATION AUTHORITY Statutory Authority: 25 Del.C. §7011(f) and 7013(c)(2) ORDER NO. 3 201 Delaware Manufactured Home Relocation Trust Fund Regulations AND NOW, this 11th day of June, 2008, the Delaware Manufactured Home Relocation Authority (the “Authority”), issues the following Order which shall be effective ten (10) days after the publication of this Order in the Delaware Registrar of Regulations: 1.Pursuant to its statutory authority, the Authority has proposed for adoption proposed revisions to the Authority’s Regulations that would set the maximum payment available to a landlord for a single section home and a multi-section home that has been abandoned or that has been determined to be non-relocatable at $500.00 and $1,000.00 respectively (the "Proposed Regulations"). Ralph Durstein, Deputy Attorney General (the "Hearing Examiner") was designated as the Hearing Examiner to conduct a public hearing for the purpose of receiving comments from the public on the Proposed Regulations. 2.The public hearing was held on Monday, December 10, 2007. A copy of the Proposed Regulations and notice of the public comment session was published in the Delaware Register on November 1, 2007, and notice of the hearing was published in both the Delaware State News and the News Journal on November 9, 2007. 3.The public hearing was presided over by the Hearing Examiner. On or about May 19, 2008, the Hearing Examiner submitted his Report. 4.The Authority considered the Proposed Regulations and Report of the Hearing Examiner at its regularly scheduled Board meeting held on June 11, 2008. At its June 11, 2008 Board meeting, the Authority adopted a resolution pursuant to which the Authority adopted the proposed regulation as a final regulation. 5.A summary of the evidence and public comments submitted on the Proposed Regulations is set forth in the Report of the Hearing Examiner attached hereto as Exhibit A. 6.For the reasons set forth herein, the Authority, by this Order, adopts as final regulations the Regulations attached to this Order as Exhibit B. 7.At the public hearing, no members of the public voiced any significant opposition to the proposed regulation. While several speakers did not believe landlords should be entitled to any benefits, by statute, a landlord is entitled to benefits, at a maximum rate to be set by the Authority. 8.The Authority believes that the maximum benefits set forth in the Proposed Regulations are reasonable under the circumstances. The Authority reaffirms its decision to set the maximum landlord reimbursement rate at $500.00 for single section homes and $1,000 for multi-section homes, as reflected in the Proposed Regulations. NOW THEREFORE, for the reasons set forth above, IT IS ORDERED: 1.That the Amendment to "Delaware Manufactured Home Relocation Trust Fund Regulations" attached hereto as Exhibit B is adopted pursuant to 25 Del.C. §7011, et. seq. The Proposed Regulations adopted herein shall become effective ten (10) days after their publication in the Delaware Register of Regulations. 2.That pursuant to 29 Del.C. §1134, the Authority shall transmit a copy of this Order and the Regulations to the Delaware Register of Regulations for publication in the next issue of the Delaware Register of Regulations. 3.That a copy of this Order and the Regulations shall be mailed to each entity or persons that previously filed written comments to the Proposed Regulations and to each person who has made a timely request for advance notice of the Authority’s regulation making proceedings. 4.That the Authority reserves the right to hereafter alter, amend, or waive the Regulations adopted herein to the extent that the same may be allowed by law. 5.That the Authority reserves the jurisdiction and power to enter such further orders in this matter as may be deemed necessary or proper. BY ORDER OF THE AUTHORITY: Stevan D. Class, Chairperson Terri Rock, Vice Chairperson Derek Strine, Board Member William Reed, Board Member Ken Fuchs, Board Member Raymond L. Paylor, Board Member Edwin Speraw, Board Member Dated: June 11, 2008 *Please note that no changes were made to the regulation as originally proposed and published in the November 2007 issue of the Register at page 548 (11 DE Reg. 548). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 59 07-01-08.htm DEPARTMENT OF EDUCATION OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 410 410 Satellite School Agreements I. Summary of the Evidence and Information Submitted The Secretary of Education intends to amend 14 DE Admin. Code 410 Satellite School Agreements to clarify the process by which a local school district or charter school can establish a satellite school. Pursuant to Title 14, Section 2005 of Delaware Code “a ‘satellite school’ is defined as a public school that operates in physical facilities leased from, donated by or located on property that is owned or leased by a private sector or governmental employer which is not the school district or charter school operating the satellite school.” Notice of the proposed regulation was published in the News Journal and the Delaware State News on Monday, May 5, 2008, in the form hereto attached as Exhibit “A”. The Department did not receive comments on the proposed amendments. II. Findings of Facts The Secretary finds that it is appropriate to amend 14 DE Admin. Code 410 Satellite School Agreements in order to clarify the process by which a local school district or charter school can establish a satellite school. III. Decision to Amend the Regulation For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 410 Satellite School Agreements. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 410 Satellite School Agreements attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 410 Satellite School Agreements hereby amended 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 14 DE Admin. Code 410 Satellite School Agreements amended hereby shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 410 Satellite School Agreements in the Administrative Code of Regulations for 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 13, 2008. 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 13th day of June 2008. DEPARTMENT OF EDUCATION Valerie A. Woodruff, Secretary of Education *Please note that no changes were made to the regulation as originally proposed and published in the May 2008 issue of the Register at page 1401 (11 DE Reg. 1401). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 60 07-01-08.htm OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 608 608 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 amend 14 DE Admin. Code 608 Unsafe School Choice Option for Students in Persistently Dangerous Schools and for Students who have been Victims of a Violent Felony and rename the regulation, 608 Unsafe School Choice Option Policy. The amended regulation adds another definition and requires each school district and charter school to have an electronic copy on file with the Department of Education of the current policies and procedures describing school choice options to a student who is the victim of a violent felony, including the process for notifying parents and provide any new or revised policies and procedures to the Department of Education within ninety (90) days of any revision(s). In addition, the amended regulation clarifies suspension and expulsion data used for the determination of persistently dangerous schools. Notice of the proposed regulation was published in the News Journal and the Delaware State News on Monday May 5, 2008, in the form hereto attached as Exhibit “A”. The Department received comments from the Governor’s Advisory Council for Exceptional Citizens endorsing the proposed amendments. II. Findings of Facts The Secretary finds that it is appropriate to amend 14 DE Admin. Code 608 Unsafe School Choice Option for Students in Persistently Dangerous Schools and for Students who have been Victims of a Violent Felony in order to add another definition, a requirement that each school district and charter school have an electronic copy of the current policies and procedures on file with the Department of Education within ninety (90) days of any revision(s) and clarifies suspension and expulsion data. III. Decision to Amend the Regulation For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 608 Unsafe School Choice Option for Students in Persistently Dangerous Schools and for Students who have been Victims of a Violent Felony. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 608 Unsafe School Choice Option for Students in Persistently Dangerous Schools and for Students who have been Victims of a Violent Felony attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 608 Unsafe School Choice Option for Students in Persistently Dangerous Schools and for Students who have been Victims of a Violent Felony hereby amended 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 14 DE Admin. Code 608 Unsafe School Choice Option for Students in Persistently Dangerous Schools and for Students who have been Victims of a Violent Felony amended hereby shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 608 Unsafe School Choice Option for Students in Persistently Dangerous Schools and for Students who have been Victims of a Violent Felony in the Administrative Code of Regulations for 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 13, 2008. 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 13th day of June 2008. DEPARTMENT OF EDUCATION Valerie A. Woodruff, Secretary of Education *Please note that no changes were made to the regulation as originally proposed and published in the May 2008 issue of the Register at page 1404 (11 DE Reg. 1404). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 62 07-01-08.htm OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 915 915 James H. Groves High School I. Summary of the Evidence and Information Submitted The Secretary of Education seeks the consent of the State Board of Education to amend 14 DE Admin. Code 915 James H. Groves High School by adding the requirement in 4.4.1 that students enrolled in the James H. Groves High School must successfully complete and receive credit for a minimum of one Groves course in order to receive a State of Delaware diploma. Notice of the proposed regulation was published in the News Journal and the Delaware State News on Monday, May 5, 2008, in the form hereto attached as Exhibit “A”. The Department did not receive comments on this regulation. II. Findings of Facts The Secretary finds that it is appropriate to amend 14 DE Admin. Code 915 James H. Groves High School in order to add the requirement that students enrolled in the James H. Groves High School must successfully complete and receive credit for a minimum of one Groves course in order to receive a State of Delaware diploma. III. Decision to Amend the Regulation For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 915 James H. Groves High School. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 915 James H. Groves High School attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 915 James H. Groves High School hereby amended 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 14 DE Admin. Code 915 James H. Groves High School amended hereby shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 915 James H. Groves High School in the Administrative Code of Regulations for 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, 2008. 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 2008. DEPARTMENT OF EDUCATION Valerie A. Woodruff, Secretary of Education Approved this 19th day of June 2008 STATE BOARD OF EDUCATION Jean W. Allen, President Richard M. Farmer, Jr., Vice President Jorge L. Melendez Barbara Rutt Dennis J. Savage Dr. Terry M. Whittaker *Please note that no changes were made to the regulation as originally proposed and published in the May 2008 issue of the Register at page 1414 (11 DE Reg. 1414). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 63 07-01-08.htm DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF MEDICAID AND MEDICAL ASSISTANCE Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) ORDER DRA 2005 - Third Party Data Exchange Nature of the Proceedings: Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance (DMMA) initiated proceedings to amend the Title XIX Medicaid State Plan to comply with the third party data exchange provision mandated by Section 6035(b) of the Deficit Reduction Act (DRA) of 2005 (Public Law 109-171). 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 2008 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by May 31, 2008 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations. Summary of Proposed Amendment The proposed amends the Title XIX Medicaid State Plan to document compliance with Section 6035 of the Deficit Reduction Act of 2005 (DRA). Section 6035 requires States to have laws which mandate that third parties comply with all of the provisions of section 1902(a)(25)(I) of the Social Security Act (the Act). Statutory Authority • Deficit Reduction Act of 2005 (Public Law 109-171), enacted on February 8, 2006, Section 6035, Enhancing Third Party Identification and Payment • House Bill 101, 144th General Assembly, An Act to Amend Title 18 of the Delaware Code Relating to the Insurance Code Background Third Party Liability (TPL) refers to the legal obligation of third parties, i.e., certain individuals, entities, or programs, to pay all or part of the expenditures for medical assistance furnished under a State plan. The Medicaid program by law is intended to be the payer of last resort; that is, all other available third party resources must meet their legal obligation to pay claims before the Medicaid program pays for the care of an individual eligible for Medicaid. Examples of third parties which may be liable to pay for services include private health insurance, Medicare, employment-related health insurance, court-ordered health insurance derived by noncustodial parents, court judgments or settlements from a liability insurer, workers' compensation, first party probate-estate recoveries, long-term care insurance, and other State and Federal programs (unless specifically excluded by Federal statute). Individuals eligible for Medicaid assign their rights to third party payments to the State Medicaid agency. States are required to take all reasonable measures to ascertain the legal liability of third parties to pay for care and services available under the State plan. Once States have determined that a potentially liable third party exists, the State is required to either "cost avoid" or "pay and chase" claims. Cost avoidance is where the provider of services bills and collects from liable third parties before sending the claim to Medicaid. Pay and chase is utilized when the State Medicaid agency pays the medical bills and then attempts to recover from liable third parties. Section 6035(b) of the Deficit Reduction Act of 2005 (DRA) created a new subsection (I) in section 1902(a)(25) of the Act. Under that new subsection, States are required to have laws that mandate health insurers or other parties that are legally responsible for payment of a claim for a health care item or service to provide the State with information that enables State Medicaid agencies to determine the existence of third party coverage for Medicaid recipients. States must amend their State plans to include an attestation that the required State law is in place. The provisions of section 6035 of the DRA were effective January 1, 2006, except where States must pass new laws to comply with the DRA. States that already have the requisite laws should submit an amendment to their State plan as soon as practicable. States that do not currently have the required laws in place should enact the required legislation during their next legislative session and submit a State Plan amendment as soon as the legislation has been enacted. Summary of Proposed Amendment House Bill (HB) 101 was signed into law by the Governor on February 4, 2008. HB 101 implements the requirement in the DRA mandate that states have laws in place to require that, as a condition of conducting business in the State, all health insurers provide eligibility and coverage information to the State Medicaid Agency, when the State requests such information. This information exchange will guarantee that third party insurance coverage is exhausted before Medicaid pays for a service for Medicaid recipients who also have third party coverage. The Division of Medicaid and Medical Assistance (DMMA) will amend the Title XIX Medicaid State Plan to provide assurances, satisfactory to the Secretary, that it has laws in effect requiring health insurers (including parties that are legally responsible for payment of a claim for a health care item or service), as a condition of doing business in the state: (1) To provide, upon request of the state, eligibility and claims payment data with respect to individuals who are eligible for or receiving Medicaid; (2) To accept an individual’s or other entity’s assignment of rights (i.e., rights to payment from the parties) to the state; (3) To respond to any inquiry from the state regarding a claim for payment for any health care item or service submitted not later than three years after the date such item or service was provided; and, (4) To agree not to deny a claim submitted by the state solely on the basis of the date of submission of the claim. DMMA will also, amend the state plan regarding the frequency of data exchange for health insurance carriers from “biannually” to “No less than once every two (2) months, unless permission is given in advance by the agency.” Summary of Comments Received with Agency Response The State Council for Persons with Disabilities (SCPD) offered the following observations and recommendations summarized below. DMMA has considered each comment and responds as follows. As background, the Deficit Reduction Act (DRA) of 2005 requires states to have laws to facilitate Medicaid’s role as the payor of last resort. Such laws must include provisions mandating that health insurers and other legally responsible parties provide the State with information to enable the State to determine the existence of third party coverage for Medicaid recipients. In February 2008, the Governor signed H.B. 101 into law. That legislation authorizes DHSS to require health insurers to provide specific information on Medicaid recipients. The information is characterized as “Plan Eligibility Data Elements”. The Department can require insurers to provide data electronically in a format specified by DHSS at least every two (2) months. DMMA is now issuing proposed Medicaid Plan amendments certifying compliance with the DRA. SCPD did not identify any concerns with the technical amendment which essentially confirms the adoption of H.B. 101. Agency Response: Your participation is appreciated. Thank you for your comments. Findings of Fact: The Department finds that the proposed changes as set forth in the May 2008 Register of Regulations should be adopted. THEREFORE, IT IS ORDERED, that the proposed regulation to amend the Title XIX Medicaid State Plan to comply with the third party data exchange provision mandated by Section 6035(b) of the Deficit Reduction Act (DRA) of 2005 is adopted and shall be final effective July 10, 2008. Vincent P. Meconi, Secretary, DHSS, June 16, 2008 *Please note that no changes were made to the regulation as originally proposed and published in the May 2008 issue of the Register at page 1417 (11 DE Reg. 1417). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 65 07-01-08.htm DEPARTMENT OF LABOR DIVISION OF INDUSTRIAL AFFAIRS OFFICE OF WORKERS’ COMPENSATION Statutory Authority: 19 Delaware Code, Section 2322B (19 Del.C. §2322B) ORDER 1341 Workers’ Compensation Regulations A public hearing was held on May 12, 2008 to receive public comments relating to the Fee Schedule Rules and Instructions (“Rules and Instructions”), Drug Formulary (“Formulary”), Health Care Practice Guidelines (“Practice Guidelines”), and Utilization Review and Accompanying Form (“UR” and “UR Form”) for adoption by the Delaware Department of Labor. The members of the Health Care Advisory Panel (“Panel”) present recommend that the Secretary of Labor adopt this proposal as it was published in the Register of Regulations, Vol. 11, Issue 10 (April 1, 2008). Summary of the Evidence and Information Submitted Exhibits Admitted: Exhibit 1 – News Journal Affidavit of publication of notice of public hearing. Exhibit 2 – Delaware State News Affidavit of publication of notice of public hearing. No written comments were received by the Delaware Department of Labor. After the Panel concluded with their introductions, personnel from Ingenix introduced themselves. Susan Seare, Ingenix Senior Director of Data Collection, stated for the record that she was available to assist with the data collection component of the Workers’ Compensation Act without charge. The following comments were made during the Public Meeting: Rules and Instructions: First, Dennis Menton, Esquire addressed the Panel questioning the effective date of the Health Care Payment System and the Health Care Payment System’s effect on current/ongoing cases. Second, Scott Mondell, Esquire questioned when the Health Care Provider Certification information (list of certified providers) would be available to the public via the Delaware Department of Labor’s website. Formulary: Third, Dr. Frank Falco commented that the opiods, as listed on the Formulary, indicated an “inappropriate use.” Practice Guidelines: Fourth, Lorna Lee, an acupuncturist, recommended that the list of providers include professional acupuncturists. Further, Ms. Lee stated that House Bill No. 377, a bill currently before the House seeks to license and include acupuncturists in the list of Health Care providers. Dr. Falco also addressed the Panel on the issue of Practice Guidelines, first by complimenting the Panel on the work they had done in drafting the Practice Guidelines and next by discussing in detail areas where he believed the Practice Guidelines needed further revisions or modifications. Dr. Falco was asked by the Panel to provide his comments in writing so that they could be reviewed in detail at a later date. Dr. Falco did submit his written comments to John Kirk, Deputy Director of Industrial Affairs, the night of the Public Meeting and the following day. Mr. Menton, again addressed the Panel regarding the applicability of the Practice Guidelines and whether the statute’s effective date applied to cases already in the workers’ compensation system. Utilization Review: No public comment. The Panel voted: (1)13 to 1 in favor of recommending approval of the Fee Schedule Rules and Instructions; (2)unanimously to recommend approval of the Drug Formulary and the Health Care Practice Guidelines; and (3)12 to 2 in favor of recommending approval of Utilization Review and UR Form. Therefore, the Panel agreed to submit and recommend the Fee Schedule Rules and Instruction, Drug Formulary, Health Care Practice Guidelines and Utilization Review and accompany form for adoption by the Delaware Department of Labor. Recommended Findings of Fact with Respect to the Evidence and Information The Panel is persuaded that the proposals are consistent with administrating the statutory directives in the new workers compensation law. Recommendation The proposals are respectfully submitted to the Secretary of Labor for consideration with a recommendation for adoption this 13th day of May, 2008. HEALTH CARE ADVISORY PANEL Bruce Rudin, M.D., Chair George B. Heckler, Esquire, Vice-Chair Wayne Smith Linda Cho Matthew Eppley, M.D. Walter Powell, M.D. Glenn Brown Josette Covington, M.D. Joseph Rhoades, Esquire Barry Baskt, D.O. Richard Hefron Harry Gravell Douglas Briggs, D.C. James Downing, M.D. Decision and Effective Date Having reviewed and considered the record and recommendations of members of the Health Care Advisory Panel to adopt the Fee Schedule Rules and Instructions, Drug Formulary, Health Care Practice Guidelines, and Utilization Review and Accompanying Form. The Fee Schedule Rules and Instructions, Drug Formulary, Health Care Practice Guidelines, and Utilization Review and Accompanying Form are hereby adopted by the Delaware Department of Labor and made effective May 23, 2008. Text and Citation The Fee Schedule Rules and Instructions, Drug Formulary, Health Care Practice Guidelines, and Utilization Review and Accompanying Form notice appeared in the Register of Regulations, Vol. 11, Issue 10 (April 1, 2008). The Fee Schedule Rules and Instructions, Drug Formulary, Health Care Practice Guidelines, and Utilization Review and Accompanying Form are available from the Department of Labor, Division of Industrial Affairs, Office of Workers’ Compensation or on the department’s website: www.delawareworks.com. DEPARTMENT OF LABOR Thomas B. Sharp Secretary of Labor *Please note that no changes were made to the regulation as originally proposed and published in the April 2008 issue of the Register at page 1337 (11 DE Reg. 1337). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 67 07-01-08.htm DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL DIVISION OF FISH AND WILDLIFE Statutory Authority: 7 Delaware Code, Section 102(a) (7 Del.C. §102(a)) 7 DE Admin. Code 3901 Secretary’s Order No.: 2008-F-0028 Withdrawal of Proposed New Regulation, 19.0: Bald Eagle Protection Date of Issuance: June 23, 2008 Effective Date: June 23, 2008 Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”) under 29 Del.C. §§8001 et seq., 29 Del.C. §§10111 et seq. and 7 Del.C. §6010 (a), the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding: On April 8, 2008, the Department opened a proposed rulemaking proceeding in Start Action Notice (“SAN”) 2008-04 to promulgate a regulation which would ensure that the Bald Eagle population here in Delaware persists after protection from the federal Endangered Species Act was terminated on August 8, 2007. Eagles are a significant non-consumptive wildlife resource, which require protection in order to persist. Bald eagles are very sensitive to disturbance, which may result in failure of nests or abandonment of nest sites. In Delaware, the acreage of development in proximity to current nest sites is proposed to double in the next five years. Scientific studies from this region show eagles require significant no-disturbance buffers around their nests in order to persist. The proposed regulation would have maintained the same level of protection to eagle nest sites that was in place under the Endangered Species Act prior to August 2007. Delaware Code currently protects eagles from disturbance, but does not define disturbance. The new regulation proposed would have adopted the same protection to eagle nest sites that was formerly provided under the Endangered Species Act of 1973 prior to the eagle’s removal from the federal Endangered Species List in August of 2007. The aforementioned proposed regulation was published in the May 2008 edition of the Delaware Register of Regulations. Subsequently, the Department held a public workshop on May 28, 2008, in order to enhance public awareness of this proposed new regulation concerning Bald Eagle protection in the State of Delaware. A formal public hearing regarding the proposed new regulation was scheduled to be held by the Department on June 4, 2008, and the public comment period was open for written comments from May 1, 2008 through June 14, 2008. As a result of the public comments the Department received during that time period, the Department decided to significantly revise the proposed regulation and publish the revised proposed regulation, once completed, at a later date in the Delaware Register of Regulations. In order to not have two proposed regulations simultaneously pending consideration for adoption as a final regulation, the Department will continue to move forward with its plan to substantively revise the proposed regulation concerning Bald Eagle protection here in Delaware, and at this time withdraw the current proposed regulation previously published in the May 2008 Delaware Register of Regulations. In conclusion, the following findings and conclusions are entered: 1.The Department, acting through this Order of the Secretary and 29 Del.C. §10118(d), hereby withdraws the proposed regulation published in the Delaware Register of Regulations on May 1, 2008; 2.The Department will allow its proposed rulemaking commenced with Start Action Notice No. 2008-04 to continue with a new, substantively revised proposed regulation to be published in the Delaware Register of Regulations once all revisions have been made, and the Department may rely on the portions of the administrative record already developed to the extent that the Department determines that they are relevant to the proposed new regulation to be published in a future edition of the Delaware Register of Regulations; and 3.The Department shall have this Order published in the Delaware Register of Regulations and in newspapers in the same manner as the notice of the proposed regulation. John A. Hughes Secretary DEPARTMENT OF STATE DIVISION OF PROFESSIONAL REGULATION 300 Board of Architecture Statutory Authority: 24 Delaware Code, Section 306(a)(1) (24 Del.C. §306(a)(1)) 24 DE Admin. Code 300 ORDER After due notice in the Register of Regulations for public comment on the Board's Draft Regulations, the board voted to adopt the final regulations in the form attached, which does not vary in substance from the Draft Regulations, 24 DE Admin. Code 300. This regulation shall go into effect as provided in the applicable provisions of the Administrative Procedures Act, 29 Del.C. Chapter 100. SO ORDERED THIS 4TH DAY OF JUNE, 2008. Arden Bardol Sandra C. Mifflin C. Terry Jackson Kenneth M. Freemark, Jr. Julia Hopkins Alvin French Jean McCool Approved as to form: Andrew Kerber, Deputy Attorney General 300 Board of Architects (Break in Continuity of Sections) 5.0IDP Training Requirements 5.1The IDP is a requirement for all applicants for initial registration in the State of Delaware. Applicants holding a current registration in good standing in another United States jurisdiction or Canadian province and documenting five (5) or more years of practicing architecture immediately preceding the date of the application that is acceptable to the Board may obtain a waiver of the IDP requirement. A request for waiver shall be made on a form prescribed by the Board 5.2The IDP, which is administered by the National Council of Architectural Registration Boards (NCARB), will be initiated by completing an application for NCARB/IDP Council Record and submitting required application fees. This application may be obtained from NCARB, 1801 K Street NW, Suite 1100, Washington, D.C. 20006-1310 or www.ncarb.org. Preparation of all components of the IDP record for references, transcripts, training, etc., will be done in accordance with current NCARB standards. The NCARB Council Record will be accepted as verification of education and training requirements for initial registration. [5.3Reciprocity 5.3.1Registration through reciprocity applications shall be governed by 24 Del.C. §309. 5.3.2Applicants for registration through reciprocity who were previously registered as architects in Delaware and had the Certificate of Registration cancelled or lapsed shall be required to certify that they have satisfied the minimum Continuing Education Requirement for Renewal provided in Regulation 6.2 and 6.3 for the two year period preceding the new registration, notwithstanding that the Certificate of Registration was cancelled or lapsed.] 6.0Registration 6.1Duration- Each certificate of registration issued by the Board shall be valid for two years, or the expiration of the current licensing period. 6.2Continuing Education Rrequirements Ffor Rrenewal.: -For license or registration periods beginning August 1, 2003, and thereafter, each holder of a Certificate of Registration shall complete sixteen (16) hours of continuing education (Professional Development Units or PDUs) acceptable to the Board during each biennial licensing period. Completion of required continuing education is a condition for renewal of a Certificate of Registration. Each Registered Architect shall be exempt from the continuing education requirement in his or her initial biennial licensing period, or any portion thereof, in which he or she is licensed or registered to practice. Each Registered Architect shall be required to complete and submit forms prescribed by the Board certifying compliance with the continuing education requirement for renewal of registration. Required documentation may include a syllabus, agenda, itinerary or brochure published by the sponsor of the activity, as well as proof of attendance. The Board reserves the right to require additional information or documentation regarding continuing education compliance from a Registered Architect. 6.2.1For registration periods beginning August 1, 2007 and thereafter, each holder of a certificate of registration shall complete twenty four (24) contact hours of continuing education acceptable to the Board during each biennial registration period. 6.2.2All continuing education shall be obtained in the areas of Health, Safety and Welfare. The following are acceptable continuing education: a) NCARB monograph programs; b) health safety and welfare programs approved by AIA. 6.2.3Completion of required continuing education is a condition for renewal of a certificate of registration. 6.2.4One (1) contact hour is defined as one hour or one unit of acceptable continuing education in accordance with the standards of NCARB for NCARB monograph programs and the AIA for health, safety and welfare programs approved by the AIA. 6.2.5An Architect who has been registered for less than one year in Delaware on July 31 biennial renewal shall be exempt from the continuing education requirement for the preceding two (2) year period. 6.2.6Each registered architect shall be required to attest to the satisfactory completion of twenty four (24) contact hours of continuing education within the immediately preceding two (2) year period. No continuing education credits may carryover over into a later biennial period. 6.3Content: All continuing education shall be obtained in the areas of Health, Safety and Welfare. The following are deemed acceptable continuing education: a) NCARB monograph programs; b) health safety and welfare programs approved by AIA. Continuing Education Rules: 6.3.1Random audits of compliance will be performed by the Board. All registrants shall maintain documentation of continuing education, which shall include proof of attendance and verification that the education was an NCARB monograph course or a health, safety and welfare course approved by AIA. 6.3.2Attestation of compliance may be completed electronically if the renewal is accomplished online. Alternatively, paper renewal documents that contain the attestation of compliance may be submitted. 6.3.3Attestation of continuing education shall be submitted to the Division of Professional Regulation prior July 31 of the reporting year. 6.4Hardship Extension: The Board may, in its discretion, grant an extension of time within which the continuing education requirement must be completed for reasons, including, but not limited to, illness, disability, military service, and exceptional family responsibilities. The period of hardship extension granted shall be determined by the Board. Requests for a hardship extension must be in writing and submitted to the Board prior to the expiration of the licensing period. 6.5Late Renewal 6.5.1A licensee that has failed to renew on or before the renewal date may apply to renew their expired registration within six (6) months following the renewal date; provided however, that those licensees with a pending renewal from the 2003 biennial registration period may submit such application within six months of the effective date of this Rule, unless otherwise required by law. A registrant that has failed to renew on or before July 31 renewal date may apply to the Board to renew their registration within six (6) months following the renewal date. 6.5.2All late renewal applications must be accompanied by: 6.5.2.1Renewal fee 6.5.2.2Late renewal fee 6.5.2.3Documentation of compliance with the continuing education requirement prior to the renewal date. 6.5.3A licensee who has failed to complete the continuing education requirement by the renewal date may request an extension of time of up to six (6) months following the renewal date to satisfy the prior license period continuing education requirement; provided however, that those licensees with a pending renewal from the 2003 biennial registration period may satisfy such continuing education requirement with 6 months of the effective date of this Rule, unless otherwise required by law. A registrant who has failed to complete the continuing education requirement by the August 1 renewal date may request, in writing, an extension of time of no more than six (6) months following the renewal date to satisfy the immediately preceding two (2) year requirement. 6.5.4No continuing education completed during the late period may be used to satisfy future renewal requirements. 6.6Not Transferable - A certificate of registration shall not be transferable. 6.7Revocation, Suspension, Cancellation or Non-renewal of Registration - In the event of revocation, cancellation, suspension or nonrenewal of any registration, the registered architect shall be required immediately to return his/her Certificate of Registration, seal and license to the Board. [5.3 6.8Reciprocity 5.3.1 6.8.1Registration through reciprocity applications shall be governed by 24 Del.C. §309. 5.3.2 6.8.2Applicants for registration through reciprocity who were previously registered as architects in Delaware and had the Certificate of Registration cancelled or lapsed shall be required to certify that they have satisfied the minimum Continuing Education Requirement for Renewal provided in Regulation 6.2 and 6.3 for the two year period preceding the new registration, notwithstanding that the Certificate of Registration was cancelled or lapsed.] 9 DE Reg. 1764 (5/1/06) *Please Note: As the rest of the sections were not amended since the proposal in the April 2008 issue, they are not being published here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 70 07-01-08.htm DIVISION OF PROFESSIONAL REGULATION 1400 Board of Electrical Examiners Statutory Authority: 24 Del.C. §1406(a)(1) 24 DE Admin. Code 1400 ORDER 1400 Board of Electrical Examiners The Delaware Board of Electrical Examiners, in accordance with 29 Del.C. Chapter 101 and 24 Del.C. §1406(a)(1), proposed amendments to its regulation sections 1.0 through 3.0, 5.0 through 7.0, and 15.0. Changes to section 1.0 include deleting language that unnecessarily repeats statutory language and making explicit licensees’ obligation to notify the Board of a change of address. Changes to sections 2.0, 3.0, 5.0, and 6.0 are technical, including deleting language that repeats statutory language. Section 5.0 is proposed for deletion as unnecessary. The proposed addition to 7.0 Expiration and Renewal creates a mandatory audit of all late-renewed licensees to verify compliance with the continuing education and insurance requirements. The proposed addition to 15.0 Inspection agencies clarifies the word “salary” as used in 24 Del.C. §1421(j). In compliance with 29 Del.C. §10115, notice of the public hearing and a copy of the proposed regulatorychanges was published in the Delaware Register of Regulations, Volume 11, Issue 11, at page 1441 on May 1, 2008. Summary of the Evidence and Information Submitted No written or verbal comments were received at the hearing. Findings of Fact The Board finds that adoption of the proposed amendments is necessary to provide for automatic audit of all late renewing licensees and to clarify its regulations. Decision and Effective Date The Board hereby adopts the proposed amendment to the regulations to be effective 10 days following final publication of this order in the Register of Regulations. Text and Citation The text of the final regulations is attached hereto as Exhibit A and is formatted to show the amendment. A non-marked up version of the regulations as amended is attached hereto as Exhibit B. IT IS SO ORDERED this 4th day of June 2008, by the Board of Electrical Examiners of the State of Delaware. Ronald Marks James Anderson Joseph Sparco, Sr. Robert Sharp Dess Stokes *Please note that no changes were made to the regulation as originally proposed and published in the May 2008 issue of the Register at page 1441 (11 DE Reg. 1441). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 73 07-01-08.htm DIVISION OF PROFESSIONAL REGULATION 2925 Real Estate Commission Education Committee Statutory Authority: 24 Delaware Code, Sections 2905(a)(1) and 2911(b) (24 Del.C. §§2905(a)(1) and 2911(b) 24 DE Admin. Code 2925 ORDER 2925 Real Estate Commission Education Committee The Delaware Real Estate Commission was established to protect the general public from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered by the profession under its purview. The Commission was further established to maintain minimum standards of practitioner competence in the delivery of services to the public. The Commission is authorized, by 24 Del.C. §2911(b), to adopt guidelines as to acceptable courses of instruction for licensees. The Commission is further authorized, by 24 Del.C. §2905(a)(1), to make, adopt, amend and repeal regulations as necessary to effectuate its statutory objectives. Pursuant to 24 Del.C. §§2911(b) and 2905(a)(1), the Delaware Real Estate Commission has proposed several changes to its Guidelines for Fulfilling the Delaware Real Estate Education Requirements. First, Rule 6.1.1.7 will be added to provide that courses addressing the use of technology in delivering real estate services may be considered eligible for continuing education credits. Rule 6.3 will be added to provide that continuing education programs must be a minimum of one hour and delivered in one hour increments. Finally, Rule 8.2 will be amended to state that a student who arrives at a continuing education program after the instruction begins shall not receive continuing education credit. Pursuant to 29 Del.C. §10155, notice of the public hearing and a copy of the proposed regulatory changes were published in the Delaware Register of Regulations, Volume 11, Issue 10 on April 1, 2008. Summary of the Evidence and Information Submitted No written comments were received. At the public hearing, Ruth Briggs King, Executive Vice President of the Sussex County Association of Realtors (“SCAOR”), stated that she supported Rule 6.1.1.7 and that SCAOR would offer classes on the use of technology in the real estate profession. Andrew Taylor, Esquire, inquired as to the purpose of the provision of Rule 6.3 pertaining to the requirement that courses must be delivered in one hour increments. Mr. Taylor was advised that this provision does not really present a change but clarifies what is set forth in the Appendix to the Real Estate Education Guidelines. Findings of Fact The Commission finds that the proposed amendments, which address standards for continuing education, will serve to both protect the public and enhance practitioner competence. Decision and Effective Date The Commission hereby adopts the proposed amendments to the Guidelines for Fulfilling the Delaware Real Estate Education Requirements to be effective 10 days following final publication of this order in the Register of Regulations. Text and Citation The text of the final regulations is attached hereto as Exhibit A and is formatted to show the amendments. A non-marked up version of the regulations as amended is attached hereto as Exhibit B. IT IS SO ORDERED this 12th day of June, 2008. DELAWARE REAL ESTATE COMMISSION John R. Giles, Professional Member Chairperson, Presiding Christopher J. Whitfield, Professional Member Vice Chairperson Ricky H. Allamong, Professional Member Secretary Harry W. Kreger, Professional Member Denise R. Stokes, Public Member James L. Givens, Professional Member Gilbert Emory, Public Member James C. Brannon, Public Member Patricia O’Brien, Public Member *Please note that no changes were made to the regulation as originally proposed and published in the April 2008 issue of the Register at page 1354 (11 DE Reg. 1354). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 74 07-01-08.htm DIVISION OF PROFESSIONAL REGULATION 5300 Board of Massage and Bodywork Statutory Authority: 24 Delaware Code, Section 5306(a)(10) (24 Del.C. §5306(a)(1)) 24 DE Admin. Code 5300 ORDER 5300 Board of Massage and Bodywork The Delaware Board of Massage and Bodywork, in accordance with 29 Del.C. Chapter 101 and 24 Del.C. §5306(a)(1), proposed amendments to its regulation sections 1.0, 2.0, and 7.0. Specifically, the proposed additions to section 1.0 Definitions divide allowable continuing education into two categories: Core and Elective. The changes to section 2.0 Filing of Application for Licensure as Massage/Bodywork Therapist clarify the language of that section but do not alter the substance of the provision. The changes to 7.0 Continuing Education provide for online licensure renewal, allow half of continuing education requirements to be fulfilled online, clarify the categorical restrictions on continuing education, and provide for the automatic approval of the content of continuing education courses approved by either the National Certification Board for Therapeutic Massage and Bodywork ("NCBTMB") or the American Massage Therapy Association ("AMTA"). In compliance with 29 Del.C. §10115, notice of the public hearing and a copy of the proposed regulatory changes was published in the Delaware Register of Regulations, Volume 11, Issue 11, at page 1453 on May 1, 2008. Summary of the Evidence and Information Submitted Two written comments were received prior to the hearing. The first was submitted by the Associated Bodywork & Massage Professionals (ABMP) and marked as "Exhibit C." ABMP wrote to ask that continuing education (CE) courses approved by it be automatically accepted by the Board. Although not related to the currently proposed changes, ABMP encouraged the Board to accept the Massage & Bodywork Licensing Examination (MBLEx) and to cut the required CE hours in half. The second comment was submitted by Linda S. Lowry and marked as "Exhibit D." Ms. Lowry expressed her opposition to the new "Core" and "Elective" CE categories and asked that ABMP- approved course be automatically approved by the Board. Although not related to the currently proposed changes, Ms. Lowry opined that Massage Therapists and Technicians should be required to complete the same number of CE hours, she suggested deleting section 4.2.1, proposed accepting additional exams for licensure, and she suggested a change to section 8.0. No verbal comments were received at the hearing. Findings of Fact The Board finds that adoption of the proposed amendments is necessary to provide for online renewals, clarify CE requirements, and streamline the audit process. Decision and Effective Date The Board hereby adopts the proposed amendment to the regulations to be effective 10 days following final publication of this order in the Register of Regulations. Text and Citation The text of the final regulations is attached hereto as "Exhibit A" and is formatted to show the amendment. A non-marked up version of the regulations as amended is attached hereto as "Exhibit B." IT IS SO ORDERED this 19th day of June 2008, by the Delaware Board of Massage and Bodywork. David Patterson, PresidentClayton Yocum Diane LangstonGordon Gelley Cindy HorsmanBarbara Uniatowski *Please note that no changes were made to the regulation as originally proposed and published in the May 2008 issue of the Register at page 1453 (11 DE Reg. 1453). Therefore, the final regulation is not being republished here. A copy of the final regulation is available at http://regulations.delaware.gov/register/july2008/final/12 DE Reg 75 07-01-08.htm DEPARTMENT OF TRANSPORTATION DIVISION OF MOTOR VEHICLES Statutory Authority: 21 Delaware Code, Section 302, and 29 Delaware Code, Section 10115 (21 (21 Del.C. §302; 29 Del.C. 10115) 2 DE Admin. Code 2221 ORDER 2221 Use of Translators Proposed Regulation 2221 establishes procedures regarding the use of translators for driver license applicants who cannot read or speak English. The regulation also addresses how a translator may assist an applicant during the Division’s written and road tests. The proposed regulation was published in the Delaware Register of Regulations on May 1, 2008. The comment period remained open until May 30, 2008. There was no public hearing on proposed Regulation 2221. Summary of the Evidence and Information Submitted The Department received essentially the same comments on the proposed regulation from the State Council for Persons with Disabilities, the Council on Deaf and Hard of Hearing and the Governor’s Advisory Council for Exceptional Citizens. The comments from these agencies involved how the proposed regulation will apply to customers who are deaf or hard of hearing. The agencies felt the regulation was a change to the Division’s current policy of providing sign language interpreters free of charge to customers who are deaf or hard of hearing. This change would have put the Division in violation of Title II of the Americans with Disabilities Act. The agencies also had some concerns with the Division not providing driver license oral and written tests in a variety of languages and how a road test would be performed for customers who are deaf or hard of hearing under the proposed regulation. The Division has no intention of applying the proposed Administrative Code 2221 to individuals who are deaf or hard of hearing and for whom, when requested, the Division supplies a sign language interpreter. The proposed regulation concerns translators for individuals who cannot read or speak English. The comments indicated there was some confusion concerning who is covered under this regulation. The following sentence shall be added at the end of Section 2.0 to help clarify this concern: “This regulation does not apply to individuals, who are deaf or hard of hearing, and who are currently provided a sign language interpreter by the Division or who use their own sign language interpreter.” Currently, the Division provides a driver license written test in Spanish and is in the process of providing the written test in three more languages. The Division also has a Spanish driver manual that we are in the process of updating. The above addresses the agencies’ concerns about the written tests. Findings of Fact Based on Delaware law and the record in this docket, I make the following findings of fact: 1.The proposed regulation as amended addresses the comments received on this regulation. 2.The proposed regulation meets the requirements of the Administrative Procedures Act and is not in conflict with Delaware law. Decision and Effective Date Based on the provisions of 21 Del.C. §302 and the record in this docket, I hereby adopt Regulation 2221 as amended and as may more fully and at large appear in the version attached hereto to be effective on June 15, 2008. Text and Citation IT IS SO ORDERED THIS ________ day of June 2008. Carolann Wicks, Secretary of Transportation 2221 Use of Translators 1.0Authority 2.0Purpose 3.0Applicability 4.0Delaware Law 5.0Substance of Regulation 6.0Non-compliance 7.0Payment of Translator Service Fees 8.0Scheduling 9.0Video and Audio Monitoring 10.0Severability 11.0Effective Date 11 DE Reg. 1459 (05/01/08) DIVISION OF TRANSPORTATION SOLUTIONS Statutory Authority: 17 Delaware Code Sections 134, 141 and 21 Delaware Code Chapter 41 (17 Del.C. §§134,141 and 21 Del.C. Ch. 41) ORDER Revisions to the Delaware Manual on Uniform Traffic Control Devices, Parts 1, 7, 8, and 9 Under Title 17 of the Delaware Code, Sections 134 and 141, as well as 21 Delaware Code Chapter 41, the Delaware Department of Transportation (DelDOT), is seeking to adopt a Delaware version of the Federal Manual on Uniform Traffic Control Devices (MUTCD). The Department drafted changes to Parts 1, 7, 8, and 9 of the Federal MUTCD, and published a Notice seeking public comment on these Parts in the April 1, 2008 edition of the Delaware Register. Other portions of the MUTCD have already been drafted and adopted. Summary of the Evidence and Information Submitted The comments received and the Department’s reactions to those comments are summarized in the accompanying table. These comments caused certain changes to be made in the proposed MUTCD. The Department considers none of these changes to be substantive in nature, and thus causing the need for a new comment period. Delaware MUTCD Summary of Comments Received and Responses - Parts 1, 7, 8 and 9 Comment Page Number(s) & Figure Number(s) DelDOT Response There is an additional blank page in Chapter 7 after the cover page that should be removed. N/A Revised per comment Do not like the school zone S4-2 “When Children Are Present” supplemental plaque, (or the proposed S5-1-DE “SCHOOL SPEED LIMIT XX WHEN CHILDREN ARE PRESENT” assembly or the school zone S4-1 “from X:XX to X:XX AM/PM” supplemental plaque. The first is difficult to enforce and the second may cause motorists to look away from traffic to check the time. Table 7B-1 Figures 7B-1, 7B-3 Pages 7B-3, 7B-5, 7B-7, 7B-9 and 7B-10 The S4-1 and S4-2 supplemental plaques are approved for use by FHWA in the Federal MUTCD. The proposed S5-1-DE simply condenses several federally approved sign panels on to a single sheet of aluminum. School zones are treated differently throughout the state, with some receiving flashing lights, and others just signing. Page 7D-1 As noted in Section 7D.02, flashing beacons are only justified when specific conditions are fulfilled. Not all school zones meet these conditions. The hyperlink to the proposed document was not valid in March. N/A Since the comment period ran from April 1, 2008 through April 30, 2008, the link had not been activated yet by the registrar’s office. It was activated in April. The term “local” on truck restriction signs continues to be problematic for law enforcement officials. Need a definition of the term “local” N/A This comment does not apply to Parts 1, 7, 8 or 9. A modified version of the R4-4 “Right Turns Yield to Bikes” sign was suggested by DelDOT for use where right turning vehicles may conflict with bikes yet an exclusive right-turn lane with a taper and storage is not provided (e.g., channelized right- turn lanes without storage (a.k.a. "slip" rights) and shared through/right-turn lanes). Table 9B-1 Figures 9B-2, 9C-5 Page 9B-3 Revised per comment Figure 8B-6 shows the double yellow centerline extending beyond the RR pavement markings to prohibit passing in both directions. This should also be reflected in Figure 8B-7 (both drawings). Also, there is a missing period at the end of the paragraph in Section 8B-21. Figure 8B-7 Page 8B-10 Revised per comment The “SCHOOL BUS STOP AHEAD” S3-1p-DE plaque needs to be added to Figure 7B-1. Figure 7B-1 Revised per comment Findings of Fact Based on the record in this docket, I make the following findings of fact: 1.The proposed amendments to Parts 1, 7, 8, and 9 of the Federal MUTCD are useful and proper, as amended pursuant to the comment period process required under the Administrative Procedures Act. 2.The adoption of these proposed changes to the MUTCD for Delaware is in the best interests of the State of Delaware. Decision and Effective Date Based on the provisions of Delaware law and the record in this docket, I hereby adopt the amended Parts 1, 7, 8, and 9 of the Federal MUTCD, as set forth in the version attached hereto, to be effective on July 21, 2008. IT IS SO ORDERED this 12th day of June, 2008. Carolann Wicks, Secretary Delaware Department of Transportation *Please Note: Due to the size of the final regulation, the DelDOT Manual on Uniform Traffic Control Devices, Parts 1, 7, 8 and 9, is not being published here. A PDF version is available at the website listed below: http://regulations.delaware.gov/register/july2008/final/MUTCD.pdf DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL DIVISION OF WATER RESOURCES Statutory Authority: 7 Delaware Code, Section 6010, (7 Del.C. §6010) GENERAL NOTICE Secretary’s Order No. 2008-W-0022 Withdrawal of Proposed “Regulations of the Pollution Control Strategy for the Indian River, Indian River Bay, Rehoboth Bay and Little Assawoman Bay Watersheds, Delaware,” as Published in the May 2007 Delaware Register of Regulations Date of Issuance: May 20, 2008 Effective Date: May 20, 2008 Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”) under 29 Del.C. §§8001 et seq., 29 Del.C. §§10111 et seq. and 7 Del.C. §6010 (a), the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding: On February 13, 2006, the Department opened a proposed rulemaking proceeding in Start Action Notice (“SAN”) 2002-006 to promulgate a regulation to control non-point sources of nutrient pollutants from entering the waters of the Inland Bays, which consist of the Indian River, Indian River Bay, Rehoboth Bay and Little Assawoman Bay and their tributaries. The proposed regulation would have established nutrient removal requirements for stormwater management and on-site waste waster treatment and disposal system standards within the watersheds. The Inland Bays are vitally important to Delaware’s economy and to overall environment within the Inland Bays and the public health based upon the recreational uses of the Inland Bays. The Department determined in a series of studies and total maximum daily load (“TMDL”) regulations that the Inland Bays have impaired water quality based upon their classification and under the Federal Water Pollution Control Act, or Clean Water Act. The Department conducted numerous meetings and workshops during the development of the proposed regulation, which was published May 2007 in the Delaware Register of Regulations. The Department held two public hearings on June 13, 2007 and June 14, 2007 and the public comment period was open for written comments from May 1, 2007 through June 29, 2007. As a result of the public comments the Department received, the Department decided to significantly revise the proposed regulation and publish the revised proposed regulation in the June 2008 Delaware Register of Regulations. In order to not have two proposed regulations pending consideration for adoption as a final regulation, the Department will move forward with the revised proposed regulation to be published in the June 2008 Delaware Register of Regulations and withdraw the proposed regulation that was published in the May 2007 Delaware Register of Regulations. In conclusion, the following findings and conclusions are entered: The Department, acting through this Order of the Secretary and 29 Del.C. §10118(d), hereby withdraws the proposed regulation published in the Delaware Register of Regulations on May 1, 2007; and The Department will allow its proposed rulemaking commenced with Start Action Notice No. 2002-06 to continue with a new, revised proposed regulation to be published in the June 2008 Delaware Register of Regulations, and the Department may rely on the portions of the administrative record already developed to the extent that the Department determines that they are relevant to the proposed regulation to be published in the June 2008 Delaware Register of Regulations. The Department shall have this Order published in the Delaware Register of Regulations and in newspapers in the same manner as the notice of the proposed regulation. John A. Hughes, Secretary, DNREC DELAWARE RIVER BASIN COMMISSION NOTICE OF PUBLIC HEARING AND BUSINESS MEETING The Delaware River Basin Commission will hold a public hearing and business meeting on Wednesday, July 16, 2008 beginning at 10:30 a.m. at the Commission's office building located at 25 State Police Drive, West Trenton, New Jersey. For more information visit the DRBC web site at www.drbc.net or contact Pamela M. Bush, Esq., Commission Secretary and Assistant General Counsel, at 609-883-9500 extension 203. DELAWARE STATE FIRE PREVENTION COMMISSION NOTICE OF PUBLIC HEARING Delaware State Fire Prevention Regulations, Part IX, Fire Service Standards Chapter 4 Minimum Requirements offor the Establishment of Fire Companies and Sub Stations The Delaware State Fire Prevention Commission will hold a public hearing pursuant to 16 Del.C. §6603 and 29Del.C. §101 on Tuesday, August 19, 2008 at 1:00 P.M. in the Commission Chamber, Delaware State Fire School, Delaware Fire Service Center, 1463 Chestnut Grove Road, Dover, Delaware. The Commission is proposing changes to Part IX, Fire Service Standards, Minimum Requirements of the Establishment Fire Companies and Substations, to update the regulation related to substations and to make the regulation applicable to the establishment of additional Emergency Medical Service (EMS) stations as well as fire substations. Persons may view the proposed changes to the Regulations between the hours of 8:00 a.m. to 4:30 p.m., Monday through Friday, at the Delaware State Fire Prevention Commission, Delaware State Fire School, Delaware Fire Service Center, 1463 Chestnut Grove Road, Dover, Delaware, 19904, or Office of the State Fire Marshal located at the Delaware Fire Service Center, 1537 Chestnut Grove Road, Dover, Delaware, 19904, or the Regional State Fire Marshal’s Offices located 2307 MacArthur Road, New Castle, Delaware and 22705 Park Avenue, Georgetown, Delaware, 19947. You can find the meeting announcement and proposed changes on the Delaware Website http://www.delaware.gov/egov/calendar.nsf or on the Delaware State Fire Marshal’s Office webpage at www.statefiremarshal.delaware.gov under the tabs “Services” and “Proposed Changes”. There will be a reasonable fee charge for copies of the proposed changes or the proposed changes may be retrieved from the webpage for free. Persons may present their views in writing by mailing their views to the Commission at the above addresses prior to the hearing. The final date to submit written comments shall be at the public hearing. If the number of persons desiring to testify at the public hearing is large, the amount of time allotted to each speaker may be limited. The Commission will consider promulgating the proposed regulations immediately following the public hearing. DEPARTMENT OF AGRICULTURE HARNESS RACING COMMISSION PUBLIC NOTICE 501 Harness Racing Rules and Regulations The Delaware Harness Racing Commission’s public hearing originally scheduled for July 8, 2008 to discuss rule changes for DHRC Rules 6 and 8 has been cancelled until further notice. DEPARTMENT OF EDUCATION The State Board of Education will hold its monthly meeting on Thursday, July 17, 2008 at 1:00 p.m. in the Townsend Building, Dover, Delaware. DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF MEDICAID AND MEDICAL ASSISTANCE PUBLIC NOTICE Pharmaceutical Services Program – Tamper-Resistant Prescription Pads 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 512, Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is amending the Delaware Medical Assistance Program (DMAP) Provider Manuals to bring the Medicaid regulations into compliance with Federal law. 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, Planning & Policy Development Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4454 by July 31, 2008. 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 9044.1 Newly-Certified Households 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 512, Delaware Health and Social Services (DHSS) / Division of Social Services is proposing to amend Food Stamp Program policies in the Division of Social Services Manual (DSSM) regarding newly-certified households. 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, Program & Development Unit, Division of Social Services, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4425 by July 31, 2008. The action concerning the determination of whether to adopt the proposed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons. DEPARTMENT OF INSURANCE PUBLIC NOTICE INSURANCE COMMISSIONER MATTHEW DENN hereby gives notice of intent to adopt proposed Department of Insurance Regulation 606 relating to the standardization of insurance identification cards and notification to the Division of Motor Vehicles of the termination of automobile insurance. The docket number for this proposed amendment is 730. The purpose of the proposed amendment to regulation is to eliminate the requirement that insurance identification cards be issued for periods of less than six months when the payment period is for a period of less than six months and to delete the requirement that fleet vehicles carry vehicle-specific identification cards. The text of the proposed amendment is reproduced in the July 2008 edition of the Delaware Register of Regulations. The text can also be viewed at the Delaware Insurance Commissioner’s website at: http://www.delawareinsurance.gov/ departments/documents/ProposedRegs/ProposedRegs.shtml. The Department of Insurance does not plan to hold a public hearing on the proposed changes. Any person can file written comments, suggestions, briefs, compilations of data or other materials concerning the proposed amendments. Any written submission in response to this notice and relevant to the proposed changes must be received by the Department of Insurance no later than 4:30 p.m., Monday August 4, 2008, and should be addressed to Mitchell G. Crane, Esquire, Delaware Department of Insurance, 841 Silver Lake Boulevard, Dover, DE 19904, or sent by fax to 302.739.2021 or email to mitch.crane@state.de.us. DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL DIVISION OF AIR AND WASTE MANAGEMENT REGISTER NOTICE Title of the Regulations: DELAWARE STATE IMPLEMENTATION PLAN: Administrative and Non-Substantive Changes to Delaware’s Regulations Governing the Control of Air Pollution Brief Synopsis of the Subject, Substance and Issues: Over the past 40 years, Delaware has adopted 32 air regulations that are approved by the US Environmental Protection Agency (EPA) as state implementation plan (SIP) revisions. Another four regulations have been submitted to EPA and are currently pending EPA approval into Delaware SIPs. The purpose of this SIP document is to update all these SIP regulations to a uniform style in accordance with the Delaware Administrative Code, “Manual for Drafting Regulations (March 2006).” In addition to this style update, several typo and misprint-type errors are also being corrected in this SIP revision. The administrative changes, non-substantive changes and correction of errors do not alter regulatory features of any individual regulation, such as effective date, applicability, regulatory limit and requirement, compliance and monitoring schedule, enforcement procedures, etc. Notice of Public Comment: This SIP revision and all Delaware AQM regulations under it are available for public review at offices of DNREC-DAWM Air Quality Management Section (AQMS), Dover and New Castle. A public hearing will be held on July 31, 2008, beginning at 6:00 pm, in AQMS Conference Room, 2nd Floor, Priscilla Building, 156 South State Street, Dover, DE 19901. Comments on this SIP revision and all regulations under it can be sent to AQMS at the above address, or presented at the hearing. Prepared by: Frank F. Gao, Project Leader Phone: (302) 323-4542, Date: June 12, 2008 E-Mail: Frank.Gao@state.de.us DIVISION OF AIR AND WASTE MANAGEMENT Statutory Authority: 7 Delaware Code, Section 6010, (7 Del.C. §6010) 7 DE Admin. Code 1138 REGISTER NOTICE Title of the Regulations: Amendment to Regulation 1138 Emission Standards for Hazardous Air Pollutants for Source Categories Brief Synopsis of the Subject, Substance and Issues: Under Section 112(k) of the 1990 Clean Air Act Amendment, Congress mandated that the EPA identify 30 or more hazardous air pollutants (HAPs) that posed the greatest threat to public health in urban areas, to identify the small area sources that emit those pollutants and to develop regulations to reduce the emission of HAPs. In 1999, the EPA identified 33 HAPs that posed the greatest threat to public health and has, since that time, identified over 60 new area source categories for which regulations would be developed. In July 2007, the EPA promulgated its first area source standard affecting a Delaware source; the lead acid battery manufacturing standard under 40 CFR Part 63 Subpart PPPPPP. The purpose of this proposed amendment to Regulation 1138 is to provide increased protection for children and other at-risk populations against a variety of adverse health effects, most notably the effects on the developing nervous system caused by exposure to lead. The proposed amendment will provide greater consistency between Delaware’s air toxics standards and the recently promulgated federal standard (Subpart PPPPPP) on which this amendment is heavily based. In addition, this amendment proposes to include several more protective requirements that currently exist in Delaware air permits. Notice of Public Comment: Statements and testimony may be presented either orally or in writing at a public hearing to be held on Tuesday, July 29, 2008 beginning at 6:30 PM in the DNREC Auditorium at the Richardson and Robbins Building, 89 Kings Highway, Dover DE. Interested parties may submit comments in writing to: Jim Snead, DNREC Air Quality Management Section, 715 Grantham Lane, New Castle, DE 19720. Prepared by: James R. Snead(302) 323-4542james.snead@state.de.usMay 22, 2008 DEPARTMENT OF STATE DIVISION OF PROFESSIONAL REGULATION 2500 Board of Pharmacy PUBLIC NOTICE The Delaware Board of Pharmacy, in accordance with 24 Del.C. §2509, proposes amendments to its regulations by adding new regulation sections to 1) 11.0 Pharmaceutical Services in Nursing Homes; and 2) 18.0 Pharmaceutical Services for Medical Gases. Specifically, the Board has proposed changes to regulation 11.3 Emergency Use Medications. The proposed changes are to address Board of Pharmacy concerns with interim use medications available in nursing homes A public hearing is scheduled for Wednesday, August 20, 2008, at 10:00 a.m. in the second floor Conference Room A of the Cannon Building, 861 Silver Lake Boulevard, Dover, DE 19904. Members of the public may offer verbal comments on the proposal at the hearing. Written comments may be submitted to the Board prior to the hearing care of Judy Letterman at the above address. Written comments may be submitted until the public hearing begins. Anyone wishing to obtain a copy of the proposal or to make comments at the public hearing should contact Judy Letterman at the above address or by calling (302) 744-4504. The Board will consider promulgating the proposed changes immediately following the public hearing. DIVISION OF PROFESSIONAL REGULATION 2600 Examining Board of Physical Therapists and Athletic Trainers PUBLIC NOTICE Pursuant to 24 Del.C. §2604(a)(1), the Examining Board of Physical Therapists and Athletic Trainers has proposed revisions to its rules and regulations. A public hearing was held on May 27, 2008. As the result of the public comment, the Board has decided to make substantive revisions to the proposed amendments originally published in the Delaware Register of Regulations on May 1, 2008 at 11 Del. Reg. 1445. A second public hearing is scheduled for Tuesday, July 22 at 5:15 p.m. in the second floor conference room A of the Cannon Building, 861 Silver Lake Boulevard, 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 Examining Board of Physical Therapists and Athletic Trainers, 861 Silver Lake Boulevard, Dover, Delaware 11904. Persons wishing to submit written comments may forward these to the Board at the above address. The final date to receive written comments will be at the public hearing. The Board will consider promulgating the proposed regulations at its regularly scheduled meeting following the public hearing. DEPARTMENT OF TRANSPORTATION DIVISION OF TRANSPORTATION SOLUTIONS NOTICE OF PUBLIC COMMENT PERIOD Revisions to the Delaware Manual on Uniform Traffic Control Devices, Parts 2, 3 and 6