Delaware RegisterDelaware Register
of
Regulations
Issue Date: October 1, 2002
Volume 6 - Issue 4 Pages 390 -560
IN THIS ISSUE:
Regulations:
Emergency
Proposed
Final
Governor
Executive Orders
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 September 15, 
2002.
INFORMATION ABOUT THE DELAWARE 391
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amended or repealed and any emergency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:
5 DE Reg. 1337 - 1339 (01/1/02)
Refers to Volume 5, pages 1337 - 1339 of the
Delaware Register issued on January 1, 2002.
SUBSCRIPTION INFORMATION
The cost of a yearly subscription (12 issues)
for the Delaware Register of Regulations is
$120.00. Single copies are available at a cost of
$12.00 per issue, including postage. For more
information contact the Division of Research at
302-744-4114 or 1-800-282-8545 in Delaware.
CITIZEN PARTICIPATION IN THE
REGULATORY PROCESS
Delaware citizens and other interested parties
may participate in the process by which
administrative regulations are adopted, amended
or repealed, and may initiate the process by which
the validity and applicability of regulations is
determined.
Under 29 Del.C. §10115 whenever an
agency proposes to formulate, adopt, amend or
repeal a regulation, it shall file notice and full text
of such proposals, together with copies of the
existing regulation being adopted, amended or
repealed, with the Registrar for publication in the
Register of Regulations pursuant to §1134 of this
title. The notice shall describe the nature of the
proceedings including a brief synopsis of the
subject, substance, issues, possible terms of the
agency action, a reference to the legal authority of
the agency to act, and reference to any other
regulations that may be impacted or affected by
the proposal, and shall state the manner in which
persons may present their views; if in writing, of
the place to which and the final date by which such
views may be submitted; or if at a public hearing,
the date, time and place of the hearing. If a public
hearing is to be held, such public hearing shall not
be scheduled less than 20 days following
publication of notice of the proposal in the
Register of Regulations. If a public hearing will
be held on the proposal, notice of the time, date,
place and a summary of the nature of the proposal
shall also be published in at least 2 Delaware
newspapers of general circulation. The notice
shall also be mailed to all persons who have made
timely written requests of the agency for advance
notice of its regulation-making proceedings.
The opportunity for public comment shall be
held open for a minimum of 30 days after the
proposal is published in the Register of
Regulations. At the conclusion of all hearings and
after receipt, within the time allowed, of all written
materials, upon all the testimonial and written
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE ISSUE 4, TUESDAY, OCTOBER 1, 
2002
INFORMATION ABOUT THE DELAWARE
392 REGISTER OF REGULATIONS
evidence and information submitted, together with unless a complaint therefor is 
filed in the Court
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
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
OCTOBER 1 SEPTEMBER 15 4:30 P.M.
NOVEMBER 1 OCTOBER 15 4:30 P.M.
DECEMBER 1 NOVEMBER 15 4:30 P.M.
JANUARY 1 DECEMBER 15 4:30 P.M.
FEBRUARY 1 JANUARY 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; Sandra Montemarano, Public
Information Clerk; Alex W. Mull, Assistant
Registrar; Deborah A. Porter, Interim
Supervisor; Victoria Schultes, Administrative
Assistant; Ted Segletes, Paralegal; Don Sellers,
Printer; Thom Shiels, Legislative Attorney; Alice
W. Stark, Legislative Attorney; Marvin L.
Stayton, Printer; Rochelle Yerkes, Senior
Secretary.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
TABLE OF CONTENTS 393
Cumulative Tables................................................. ....... 395
EMERGENCY
DEPARTMENT OF EDUCATION
707 Salary Continuation: Operation Noble Eagle&
Enduring Freedom......................................... ....... 398
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
Division of Fish & Wildlife
S-63 Oyster Harvesting Seasons .......................... ....... 399
PROPOSED
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
Board of Architects, Rules and Regulations ........ ....... 401
Board of Occupational Therapy, Rules
and Regulations.............................................. ....... 410
DEPARTMENT OF AGRICULTURE
HARNESS RACING COMMISSION
Rules 6.2.9, 8.3.6 , 8.7 and 10.2.7.4...................... ....... 416
DEPARTMENT OF EDUCATION
540 Driver Education............................................ ....... 432
601 School/Police Relations................................. ....... 434
707 Salary Continuation:operation Noble Eagle &
Enduring Freedom......................................... ....... 436
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
Title XIX Medicaid State Plan.............................. ....... 437
9060 Income Deductions....................................... ....... 439
9085 Reporting Changes ...................................... ....... 441
Delaware State Plan For TANF ........................... ....... 442
DEPARTMENT OF JUSTICE
DELAWARE SECURITIES ACT
600 Registration of Broker-Dealers....................... ...... 461
601 Registration of Broker-Dealer Agents............ ...... 461
608 Registration Exemption for Certain
Canadian Broker-Dealers............................... ...... 463
610 Examination Requirement.............................. ...... 467
700 Registration of Investment Advisors.............. ...... 467
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
Division of Water Resources
Delaware Regulations Governing the Control of
Water Pollution............................................... ...... 474
DELAWARE RIVER BASIN COMMISSION
Proposed Amendments to the Comprehensive Plan
and the Water Code Relating to the Operation of
Lake Wallenpaupack During Drought Watch,
Drought Warning and Drought Conditions.... ...... 476
FINAL
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
Board of Pharmacy................................................ ...... 480
Real Estate Commission........................................ ...... 516
DEPARTMENT OF AGRICULTURE
Forest Service Regulations.................................... ...... 517
DEPARTMENT OF EDUCATION
PROFESSIONAL STANDARDS BOARD
1511 Issuance & Renewal of Continuing License. ...... 518
1517 Certification Career & Technical Specialist. ...... 523
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
394 TABLE OF CONTENTS
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
RESIDENTS PROTECTION
Assisted Living Facilities, Regulations for........... ....... 525
DIVISION OF SOCIAL SERVICES
3002 Time Limit, Temporary Welfare Program... ....... 528
9007.1 - Citizenship and Alien Status................... ....... 530
9045 Maximum Allowable Resources.................. ....... 531
14600 Third-Party Liability................................. ....... 532
14900 Enrollment In Managed Care..................... ....... 533
15160.1 Eligibility Determination......................... ....... 534
15503 Screening Requirement.............................. ....... 534
15505 Uninsured Requirement.............................. ....... 535
16110 Adult Expansion Population....................... ....... 535
16210 Limitations on Retroactive Coverage......... ....... 535
16220.5 Enrollment in Managed Care - Special
Requirement for Adult Expansion Population ...... 535
16310.3 Adults...................................................... ....... 536
16500.2 Procedures for Determining Eligibility... ....... 536
18200.2 Uninsured Requirement........................... ....... 536
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF FISH & WILDLIFE
WR-2. Method Of Take........................................ ....... 536
WR-3. Federal Laws & Regulations Adopted..... ....... 537
WR-4. Seasons...................................................... ....... 537
WR-7. Deer .......................................................... ....... 
538
WR-14. Falconry................................................... ....... 538
WR-15. Collection Or Sale Of Nongame Wildlife ...... 539
WR-16. Endangered Species................................. ....... 539
WR-17. Species Of Special Concern.................... ....... 539
GOVERNOR
Appointments........................................................ ....... 540
GENERAL NOTICES
DEPARTMENT OF EDUCATION
Procedures Manual................................................ ....... 542
DEPARTMENT OF INSURANCE
Domestic/Foreign Insurers Bulletin No. 12,
Regulation 11, Register of Non-Exempt
Health Insurance Plans................................... ...... 555
DEPARTMENT OF PUBLIC SAFETY
BOARD OF EXAMINERS OF CONSTABLES
Board of Examiners of Constables........................ ...... 556
CALENDAR OF EVENTS/HEARING
NOTICES
Board of Architects, Notice of Public Hearing...... ...... 558
Board of Occupational Therapy, Notice of
Public Hearing................................................ ...... 558
Dept. of Agriculture, Harness Racing Commission,
Notice of Public Comment Period................. ...... 558
State Board of Education, Notice of Monthly
Meeting.......................................................... ...... 558
Dept. of Health & Social Services, Div. of Social Services
Title XIX Medicaid State Plan, Notice of Public
Comment Period...................................... ...... 558
Food Stamp Program, Section 9060, Notice of
Public Comment Period........................... ...... 559
Food Stamp Program, Section 9085, Notice of
Public Comment Period........................... ...... 559
Dept. of Justice, Delaware Securities Act, Notice
of Public Comment Period............................. ...... 559
DNREC, Div. of Water Resources, Regulations
Governing the Control of Water Pollution
Notice of Public Comment Period.................. ...... 560
Delaware River Basin Commission, Notice
of Meeting....................................................... ...... 560
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
CUMULATIVE TABLES 395
The table printed below lists the regulations that have been proposed, adopted, 
amended or repealed
in the preceding issues of the current volume of the Delaware Register of 
Regulations.
The regulations are listed alphabetically by the promulgating agency, followed 
by a citation to that
issue of the Register in which the regulation was published. Proposed 
regulations are designated with
(Prop.); Final regulations are designated with (Final); Emergency regulations 
are designated with
(Emer.); and regulations that have been repealed are designated with (Rep.).
DELAWARE FIRE PREVENTION COMMISSION
Sec. XVII, Ambulance Company’s Intent to Discontinue Service & Sec. XVII, Basic 
Life
Support Data Assessment 
Committee..................................................................................... 
... 6 DE Reg. 87 (Final)
DEPARTMENT OF ADMINISTRATIVE SERVICES
Division of Professional Regulation (TITLE 24 DELAWARE ADMINISTRATIVE CODE)
700 Board of 
Chiropractic............................................................................................... 
... 6 DE Reg. 270 (Final)
1000 Board of Pilot 
Commissioners.................................................................................. 
... 6 DE Reg. 231 (Prop.)
1300 Board of Examiners of Private Investigators & Private Security 
Agencies............. ... 6 DE Reg. 124 (Prop.)
2600 Board of Physical Therapists, Rule 
11.0.................................................................. ... 6 DE 
Reg. 189 (Final)
2700 Board of Professional Land 
Surveyors..................................................................... 
... 6 DE Reg. 271 (Final)
2900 Real Estate 
Commission........................................................................................... 
... 6 DE Reg. 8 (Prop.)
2925 Real Estate Commission, Education 
Guidelines...................................................... ... 6 DE Reg. 
272 (Final)
3300 Board ofVeterinary 
Medicine.................................................................................. 
... 6 DE Reg. 273 (Final)
Public Service Commission
Regulations Governing Payphone Service Providers &
Providers of Operator Services for 
Payphones......................................................... ... 6 DE Reg. 
65 (Final)
DEPARTMENT OF AGRICULTURE
Forest Service 
Regulations............................................................................................................ 
... 6 DE Reg. 127 (Prop.)
Thoroughbred Racing Commission
15.0 Medication, Testing Procedures 6 DE Reg. 233 (Prop.)
DEPARTMENT OF EDUCATION (TITLE 14 DELAWARE ADMINISTRATIVE CODE)
275 Charter Schools... 
.............................................................................................................. 
... 6 DE Reg. 13 (Prop.)
6 DE Reg. 273 (Final)
301 General Regulations for Certification of Professional Public School 
Personnel.................... ... 6 DE Reg. 235 (Prop.)
540 Driver Education. 
.............................................................................................................. 
... 6 DE Reg. 133 (Prop.)
701 Unit Count.......... 
.............................................................................................................. 
... 6 DE Reg. 74 (Final)
1001 Participation in Extra-Curricular Activities . 
...................................................................... ... 6 DE 
Reg. 18 (Prop.)
6 DE Reg. 279 (Final)
1005 Membership in Fraternities and 
Sororities............................................................................ 
... 6 DE Reg. 255 (Prop.)
1025 Delaware Interscholastic Athletic 
Association..................................................................... 
... 6 DE Reg. 280 (Final)
1049 DIAA Definitions 
.............................................................................................................. 
... 6 DE Reg. 282 (Final)
1050 DIAA 
Sportsmanship............................................................................................................ 
... 6 DE Reg. 284 (Final)
1051 DIAA Senior High School Interscholastic 
Athletics............................................................ ... 6 DE 
Reg. 6 (Errata)
6 DE Reg. 288 (Final)
1052 DIAA Junior High/Middle School Interscholastic Athletics 6 DE Reg. 304 
(Final)
1053 DIAA Waiver 
Procedure....................................................................................................... 
... 6 DE Reg. 282 (Final)
1054 DIAA Investigative 
Procedure.............................................................................................. 
... 6 DE Reg. 282 (Final)
1055 DIAA Appeal 
Procedure....................................................................................................... 
... 6 DE Reg. 282 (Final)
1056 Recognition of Officials’ 
Association.................................................................................. 
... 6 DE Reg. 282 (Final)
1105 School 
Transportation........................................................................................................... 
... 6 DE Reg. 256 (Prop.)
1510 Issuance of Initial 
License..................................................................................................... 
... 6 DE Reg. 251 (Prop.)
1512 Issuance & Renewal of Advanced 
License........................................................................... 
... 6 DE Reg. 77 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
396 CUMULATIVE TABLES
1513 Denial of Licenses 
.............................................................................................................. 
... 6 DE Reg. 253 (Prop.)
1514 Revocation of 
Licenses......................................................................................................... 
... 6 DE Reg. 254 (Prop.)
1540 Certification Science 
Teacher............................................................................................... 
... 6 DE Reg. 19 (Prop.)
1541 Limited Standard Certificate for Middle Level Mathematics and Science and
Secondary Science Certificate for Middle Level 
Science.............................................. ....... 6 DE Reg. 21 
(Prop.)
1594 Delaware Administrator Standards....... ....... 
......................................................... ....... 6 DE Reg. 22 
(Prop.)
Professional Standards Board
1511 Issuance & Renewal of Continuing 
License........................................................................ 
... 6 DE Reg. 135 (Prop.)
1517 Certification Career & Technical 
Specialist......................................................................... 
... 6 DE Reg. 140 (Prop.)
1540 Certification Science 
Teacher.............................................................................................. 
... 6 DE Reg. 319 (Final)
1541 Limited Standard Certificate for Middle Level Mathematics and Science and
Secondary Science Certificate for Middle Level 
Science....................................................... ... 6 DE Reg. 321 
(Final)
1594 Delaware Administrator 
Standards....................................................................................... 
... 6 DE Reg. 322 (Final)
DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Division of Long Term Care Residents Protection
Group Homes for Persons with Mental Illness, Regulations Pertaining 
to............................ ... 6 DE Reg. 266 (Prop.)
6 DE Reg. 323 (Final)
Nursing Homes Admitting Pediatric Residents, Regulations 
for........................................... ... 6 DE Reg. 79 (Final)
Regulations for Assisted Living 
Facilities.............................................................................. 
... 6 DE Reg. 141 (Prop.)
Division of Public Health
Clean Indoor Air Act 
Regulations.......................................................................................... 
... 6 DE Reg. 267 (Prop.)
Regulations for Adult Day Care 
Facilities.............................................................................. 
... 6 DE Reg. 83 (Final)
Delaware Radiation Control Regulations....... ...... 
.......................................................... ... 6 DE Reg. 98 
(Final)
Regulation for the Certification of 
RadiationTechnologists/Technicians.............................. ... 6 DE Reg. 
99 (Final)
Division of Social Services
DSSM
3002 Time Limit, Temporary Welfare 
Program................................................................... ... 6 
DE Reg. 155 (Prop.)
3008 & 3012 Dependent 
Children.......................................................................................... 
... 6 DE Reg. 337 (Final)
9007.1 Citizenship and Alien 
Status...................................................................................... 
... 6 DE Reg. 156 (Prop.)
9045 Maximum Allowable 
Resources.................................................................................. 
... 6 DE Reg. 158 (Prop.)
9046, 9048, 9049 & 9051, Noncitizen Elibigility and 
Certification....................................... ... 6 DE Reg. 339 (Final)
14600 Third-Party 
Liability................................................................................................... 
... 6 DE Reg. 158 (Prop.)
15200 Transitional Medicaid................................ ...... 
................................................... ... 6 DE Reg. 29 (Prop.)
6 DE Reg. 344 (Final)
25000 Children’s Community Alternative Disability Program 
(CCADP)............................ ... 6 DE Reg. 31 (Prop.)
Title XIX Medicaid State Plan, Transportation as an Administrative 
Expense...................... ... 6 DE Reg. 335 (Final)
DEPARTMENT OF INSURANCE
Regulation 41, Medicare Supplement Insurance Minimum 
Standards.................................. ... 6 DE Reg. 347 (Final)
DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL
Division of Air & Waste Management
Waste Management Section
Reg. No. 24, Section 10, Aerospace 
Coatings................................................................. ... 6 
DE Reg. 190 (Final)
2002 Amendments to Delaware Regulations Governing Hazardous 
Waste.................... ... 6 DE Reg. 106 (Final)
Division of Fish & Wildlife
Tidal Finfish Reg. No. 23, Black Sea Bass Size Limit; Trip Limits; Seasons; 
Quotas.......... ... 6 DE Reg. 35 (Prop.)
6 DE Reg. 348 (Final)
Tidal Finfish Reg. No.24, Fish Pot 
Requirements.................................................................. 
... 6 DE Reg. 35 (Prop.)
6 DE Reg. 350 (Final)
Shellfish Sanitation 
Regulations............................................................................................. 
... 6 DE Reg. 36 (Prop.)
WR-2 Method of 
Take........................................................................................................... 
... 6 DE Reg. 162 (Prop.)
WR-3 Federal Laws & Regulations 
Adopted........................................................................ 
... 6 DE Reg. 162 (Prop.)
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
CUMULATIVE TABLES 397
WR-4 Seasons.... 
.............................................................................................................. 
... 6 DE Reg. 163 (Prop.)
WR-7 Deer ........ 
.............................................................................................................. 
... 6 DE Reg. 163 (Prop.)
WR-14 Falconry 
.............................................................................................................. 
... 6 DE Reg. 164 (Prop.)
WR-15 Collection or Sale of Nongame 
Wildlife................................................................... ... 
6 DE Reg. 164 (Prop.)
WR-16 Endangered 
Species.................................................................................................. 
... 6 DE Reg. 165 (Prop.)
WR-17 Species of Special 
Concern....................................................................................... 
... 6 DE Reg. 165 (Prop.)
Division of Water Resources
Total Maximum Dail Load (TDML) for Nutrients in the Appoquinimink 
Watershed........... ... 6 DE Reg. 350 (Final)
Regulations for Licensing Water Well Contractors, Pump Installer Contractors, 
Well
Drillers, Well Drivers, and Pump 
Installers.............................................................. ... 6 
DE Reg. 165 (Prop.)
Shellfish Sanitation 
Regulations............................................................................................. 
... 6 DE Reg. 350 (Final)
DEPARTMENT OF PUBLIC SAFETY
Division of State Police
Nonconsensual Towing 
Regulations....................................................................................... 
... 6 DE Reg. 206 (Final)
DEPARTMENT OF STATE
Division of Historical & Cultural Affairs
Historic Preservation Tax Credit 
Program.............................................................................. 
... 6 DE Reg. 108 (Final)
DEPARTENT OF TRANSPORTATION
Statewide Long Range Transportation 
Plan................................................................................... 
... 6 DE Reg. 38 (Prop.)
6 DE Reg. 353 (Final)
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Co-Op Advertising 
Program................................................................................................... 
... 6 DE Reg. 174 (Prop.)
............. 
.............................................................................................................. 
... 6 DE Reg. 212 (Final)
Direct Grants 
Program............................................................................................................ 
... 6 DE Reg. 176 (Prop.)
Matching Grants 
Program....................................................................................................... 
... 6 DE Reg. 178 (Prop.)
GOVERNOR’S OFFICE
Appointments...... 
.............................................................................................................. 
... 6 DE Reg. 214 ( Final)
STATE EMPLOYEE BENEFITS COMMITTEE
Group Health Care Insurance, Proposed Revisions to Eligibility and Coverage 
Rules................ ... 6 DE Reg. 180 (Prop.)
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
398 EMERGENCY REGULATIONS
Symbol Key
Roman type indicates the text existing prior to the emergency regulation being 
promulgated. Italic type indicates new
text. Language which is stricken through indicates text being deleted.
Emergency Regulations
Under 29 Del.C. §10119, if an agency determines that an imminent peril to the 
public health, safety or welfare requires
the adoption, amendment or repeal of a regulation with less than the notice 
required by 29 Del.C. §10115, then the following
rules shall apply: (1) The agency may proceed to act without prior notice or 
hearing or upon any abbreviated notice and
hearing that it finds practicable; (2) The order adopting, amending or repealing 
a regulation shall state in writing the reasons
for the agency’s determination that such emergency action is necessary; (3) the 
order effecting such action may be effective
for a period of not longer than 120 days and may be renewed once for a period 
not exceeding 60 days; (4) When such an order
is issued without any of the public procedures otherwise required or authorized 
by Chapter 101 of Title 29, the agency shall
state as part of the order that it will receive, consider and respond to 
petitions by any interested person for the reconsideration
or revision thereof; and (5) The agency shall submit a copy of the emergency 
order to the Registrar for publication in the next
issue of the Register of Regulations.
DEPARTMENT OF EDUCATION
14 DE Admin. Code 707
Statutory Authority: 14 Delaware Code,
Section 122(d) (14 Del.C. §122(d))
Emergency Regulatory Implementing Order
707 Salary Continuation: Operation Noble Eagle and
Enduring Freedom
I. Summary Of The Evidence And Information
Submitted
The Secretary seeks emergency approval of the new
regulation 707 Salary Continuation: Operation Noble Eagle
and Enduring Freedom in order to comply with the 141st
General Assembly Senate Bill 272 and Senate Amendment 1
entitled An Act to Amend Title14 and Title 29 Relating to
Leave of Absence for Military.Service. The purpose of this
bill is to assure that school district employees will continue
to receive state compensation (less military service
compensation) for time served on active duty in Operation
Noble Eagle and Enduring Freedom.
Emergency approval is being sought under 29 Del.C.
10119 due to the fact that the Senate Bill 272 states that
"claims shall be filled within 90 days of release from active
duty or passage of this legislation, whichever is later"which
means that the 90 days began running on August 12, 2002
when the legislation was signed by the Governor. The
Department must have an approved regulation in place as
eligible applicants were permitted to file for compensation as
of August 12, 2002 and local school districts need directions
as to how they must process these requests. The financial
welfare of the applicants is at risk if the emergency
regulation is not in place. In order to assure that a permanent
regulation will be in place the Department of Education is
simultaneously submitting the regulation through the normal
procedures mandated by the Administrative Procedures Act.
II. Findings Of Facts
The Secretary finds that it is appropriate to approve this
new regulation 707 Salary Continuation: Operation Noble
Eagle and Enduring Freedom on an emergency basis in order
to comply with the 141st General Assembly Senate Bill 272
and Senate Amendment 1 entitled An Act to Amend Title14
and Title 29 Relating to Leave of Absence for
Military.Service. The purpose of this bill is to assure that
school district employees will continue to receive state
compensation (less military service compensation) for time
served on active duty in Operation Noble Eagle and
Enduring Freedom. The time period for applying for the
compensation began on August 12, 2002 when the Governor
signed the bill and the school districts need guidance as to
how to process the requests.
III. Decision To Approve The Regulation
For the foregoing reasons, the Secretary concludes that
it is appropriate to approve this emergency regulation.
Therefore, pursuant to 14 Del.C. §1327(b) and to emergency
conditions under 29 Del.C. §10119, the regulation attached
hereto as Exhibit "A" is hereby approved. Pursuant to the
provision of 29 Del.C. §10119(e), the regulation hereby
approved shall be in effect for a period 120 days from the
effective date of this order as set forth in SectionV. below.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
EMERGENCY REGULATIONS 399
IV. Text And Citation
The text of the emergency regulation amended hereby
shall be in the form attached hereto as Exhibit "A", and said
regulation shall be cited as 14 DE Admin. Code §707 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. §1327(b) and to emergency
conditions under 29 Del.C. §10119,on September 19, 2002.
The order shall be effective immediately.
IT IS SO ORDERED the 19th day of September 2002.
Department Of Education
Valerie A. Woodruff, Secretary of Education
707 Salary Continuation: Operation Noble Eagle and
Enduring Freedom
1.0 Principals, teachers and other employees of a school
district called to active military service in connection with
Operation Noble Eagle and/or Operation Enduring Freedom
shall be eligible for continuation of their state share of
salary, less any military compensation received during the
initial period of active duty.
2.0 Employees receiving continuation of their state share of
salary shall be placed either on a "Military Leave Without
Pay" if they are to receive their pay when they return from
active duty or on a "Military Leave With Pay"if they are to
receive their biweekly pay while on active duty. They will
not accumulate holidays, sick leave, or annual leave while in
a leave status. In accordance with state and federal statutes,
employees will be credited with state service for the amount
of time on military leave upon their return to active
employment.
3.0 The amount of salary continuation provided through this
regulation shall apply to the state share of salary only.
However, a local school district may elect to provide salary
continuation for the local district portion of the employee’s
salary.
3.1 The state share of compensation shall be limited to
the state share of the base salary as calculated from the
appropriate salary schedule, administrative supplements and
all other stipends as provided for in 14 Del. C. Chapter 13.
3.2 Military compensation shall include base salary,
basic allowance for quarters (BAQ), basic allowance for
subsistence (BAS), hazardous duty pay and all other
supplemental compensation. The military compensation
shall be multiplied by the ratio of state share of
compensation to total compensation in determining the state
portion of the salary continuation.
3.3 Salary continuation checks shall be subject to
applicable federal, state, and city of Wilmington taxes and
FICA, if the employee is in a FICA eligible position.
Pension contributions, if the employee is in a pension
eligible position, and garnishments will also be made from
the salary continuation checks. Other deductions from the
salary continuation checks will be made in accordance with
Department of Education guidelines.
4.0 Claims must be filed within 90 days of release from
active duty or by Tuesday November 12, 2002, whichever is
later.
4.1 Salary continuation shall be effective retroactive to
September 11, 2001.
4.2 The request for continuation of salary shall be
initiated by the employee. Employees must contact the
school district personnel office for a copy of the forms and
instructions for filing a claim.
4.3 Districts shall process claims in accordance with
the procedures and forms developed by the Department of
Education.
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF FISH & WILDLIFE
Statutory Authority: 7 Delaware Code,
Section 6010, (7 Del.C. 6010)
ORDER
Pursuant to 29 Del.C. §10119, the Department of
Natural Resources and Environmental Control is adopting an
amendment to Shellfish Regulation S-63 Oyster
Harvesting Seasons without prior notice to delay the
opening of the harvest season for oysters from the State’s
natural oyster from September 2, 2002 and instead open the
season September 16, 2002 in response to a perceived threat
to human health caused by the possible presence of Vibrio
parahaemolyticus in Delaware Bay oysters. 7 Del.C. §2106
authorizes the Department to adopt regulations to establish
the dates for annual open seasons to harvest oysters.
Reason For Emergency Order
Mr. Jack Pingree, Program Manager of the Shellfish and
Recreational Water Branch of the Division of Water
Resources, Department of Natural Resources and
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
400 EMERGENCY REGULATIONS
Environmental Control, is recommending that the Division
of Fish and Wildlife delay the opening of their fall 2002
oyster season two weeks because of concerns over the
possible presence of the human pathogen, Vibrio
parahaemolyticus, in oysters subject to harvest from
Delaware’s natural oyster beds in Delaware Bay. Mr.
Pingree referenced 16 cases of human illness in June 2002
that occurred on the New Jersey side of Delaware Bay
caused by this organism. According to Mr. Pingree and his
counterpart Mr. Bob Connell in New Jersey, this pathogenic
organism can become problematic during the warmest
months of the year and was responsible for New Jersey
closing their oyster grounds earlier in the summer of 2002
until just recently. New Jersey has the laboratory capability
and an extensive testing program to check for the presence of
this organism in their oysters, and because of this workload,
will not be able to test any oysters from the Delaware portion
of Delaware Bay until 2003. Therefore, Mr. Pingree feels
that a two-week delay in opening our season is justified so
that Delaware will be past the hottest portion of the year
prior to resuming harvest of oysters from Delaware waters,
thus minimizing the risk to consumers of Delaware oysters.
In the meantime Mr. Pingree will attempt to locate another
laboratory to test samples of Delaware oysters for Vibrio
parahaemolyticus.
Effective Date Of Order
The Order shall take effect at sunrise September 2, 2002
and shall remain in effect until sunset September 15, 2002.
Petitions For Recommendations
The Department will receive, consider and respond to
petitions by any interested person for recommendations or
revisions of this Order. Petitions should be presented to the
Fisheries Section, Division of Fish and Wildlife, 89 Kings
Highway, Dover, DE, 19901.
Order
It is hereby ordered, the 15th day of August 2002, that
an amendment to Shellfish Regulation S-63, a copy of which
is hereby attached, is adopted pursuant to 29 Del.C. §10119.
Nicholas A. DiPasquale, Secretary,
Department of Natural Resources
and Environmental Control
"S-63 Oyster Harvesting Seasons
It shall be unlawful for any person to harvest or to
attempt to harvest oysters from the State’s natural oyster
beds except during the seasons beginning at sunrise on May
10, 2002 and ending at sunset on June 29, 2002 and
beginning at sunrise on September 2, 2002 September 16,
2002 and ending at sunset on December 31, 2002."
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 401
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
BOARD OF ARCHITECTS
24 DE Admin. Code 300
Statutory Authority: 24 Delaware Code,
Section 301 (24 Del.C. §301)
Notice of Public Hearing
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del. C. Chapter 3, Section 306 (1), the
Delaware Board of Architects proposes to revise its Rules
and Regulations. The proposed Rules and Regulations are a
comprehensive revision to the exisiting Rules and
Regulations of the Board of Architects. The purpose of these
revisions is to update the rules and regulations, to conform
with changes in practices and procedures of the examination
and licensing of architects and changes in the applicable
statutes.
A Public Hearing will be held on the proposed Rules
and Regulations on Wednesday, November 6, 2002 at 2:00
p.m. in Conference Room A, second floor, Cannon Building,
861 Silver Lake Boulevard, Dover, Delaware 19904. The
Board will receive and consider input in writing from any
person on the proposed Rules and Regulations. Any written
comments should be submitted to the Board in care of Gayle
Melvin at the above address. The final date to submit
written comments shall be at the above scheduled Public
Hearing. Anyone wishing to obtain a copy of the proposed
Rules and Regulations or make comments at the Public
Hearing should notify Gayle Melvin at the above address or
by calling (302) 744-4518.
1.0 Scope: Definitions
Purpose: Regulations of the Delaware Board of
Architects are set forth for the purpose of interpreting
clarifying and implementing 24 Del.C. Ch. 3 which
establishes the Board and confers upon it responsibility for
registration of architects and the regulation of the practice of
architecture.
Citation: The regulations of the Board of Architects
shall be known, and may be cited, as Board Regulations.
Board's Regulatory Authority: The Board's regulations
are promulgated under authority of 24 Del.C. §301 and 29
Del.C. §10111.
Invalidity: Any provision found to be invalid shall not
affect any other provision and the remaining provisions shall
remain in full force and effect.
Terms Defined by Statute: Terms defined in 24 Del.C.
Ch. 3 (the "Act") shall have the same meanings when used in
these regulations, unless the context or subject matter clearly
requires a different interpretation except where the context
clearly indicates a different meaning.
Terms Defined Herein: As used in these regulations, the
following terms shall have the following meanings unless
the context or subject matter clearly requires a different
interpretation except where the context clearly indicates a
different meaning.
Administration of Construction Contracts: Shall
comprise at least the following services: (i) visiting the
construction site on a regular basis as is necessary to
determine that the work is proceeding generally in
accordance with the technical submissions submitted to the
building official at the time the building permit was issued;
(ii) processing shop drawings, samples, and other submittals
required of the contractor by the terms of the construction
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
402 PROPOSED REGULATIONS
contract documents; and (iii) notifying an owner and the
appropriate building official of any code violations, changes
that affect code compliance, the use of any materials,
assemblies, components, or equipment prohibited by a code,
major or substantial changes between such technical
submissions and the work in progress, or any deviation from
the technical submissions that he or she identifies as
constituting a hazard to the public, that he or she observes in
the course of performing his or her duties.
Applicant: An individual who has submitted an
application for registration to the Board.
Architect: Any person who is authorized to practice
architecture as defined in Title 24, Chapter 3 and who has
received holds a current a Certificate of Registration.
A.R.E: The current Architect Registration Examination,
prepared by NCARB.
Board: Delaware Board of Architects, 861 Silver Lake
Blvd. Cannon Building, Suite 203, Dover, De 19903.
CACB: Canadian Architectural Certification Board.
Direct Supervision: That degree of supervision by a
person overseeing the work of another, whereby the
supervisor has both control over and detailed professional
knowledge of the work prepared under his/her the person's
supervision. Direct supervision shall mean that the
supervisor and the individual being supervised perform their
work in the same office where personal contact is routine.
Division:Division of Professional Regulation, 861
Silver Lake Boulevard, Cannon Building, Suite 203, Dover,
Delaware 19904.
EESA:Educational Evaluation Services for Architects.
A program provider of architectural education evaluation
services administered by Educational Evaluators, Inc., a
private organization not affiliated with NCARB or any of its
member boards. NAAB.
Examination: The current Architect Registration
Examination (A.R.E.), as accepted by the Board.
IDP Applicant: An individual who has completed the
IDP training requirements set forth herein 100.302 and has
submitted an application for registration to the Board.
Initial Registration: Receiving for the first time a
certificate of registration as an architect in any United States
jurisdiction or Canadian province.
Intern: Any individual in the process of satisfying the
Board's training requirements. This includes graduates from
recognized architectural programs, architectural students
who acquire acceptable training prior to graduation and other
qualified individuals identified by the Board.
NAAB: The National Architectural Accrediting Board.
NCARB: The National Council of Architectural
Registration Boards.
Principal: An individual who is a registered architect
and in charge of an organization's architectural practice,
either alone or with other registered architects.
Safety: Design characteristics of a building or its
surrounding site relating to, but not limited to, fire
protection, means of egress, occupancy requirements,
structural design and other elements of construction
necessary to minimize potential harm from fire, smoke,
fumes, structural failure or other hazardous conditions.
compliance with occupancy classification requirements;
compliance with construction classification requirements;
means of egress; fire-rated construction assemblies;
compliance with interior finish requirements; fire detection,
alarm and suppression systems; and compliance with
environmental health regulations and smoke control
systems, compliance with the minimum requirements for
heating and cooling; natural and artificial illumination;
natural and artificial ventilation; physical hygiene; and
accessibility from environmental barriers.
VU TU:Value Training unit, used to calculate the hours
of training earned by IDP applicants
2.0 General Provisions
2.1 Board Meeting: The Board shall hold a regularly
scheduled business meeting at least once in each quarter of a
calendar year and at such other times as the President may
deem necessary, or at the request of a majority of Board
members. A majority of members shall constitute a quorum;
and no action shall be taken without the affirmative vote of
at least 5 members.
2.2 Board Seal: The outside circle of the seal measures
1-13/16" across the center. The center emblem is taken from
the Great Seal of the State of Delaware. This seal shall be
applied to all certificates of registrations issued by the
Board.
2.3 Public Information: The Board shall, at its offices,
maintain a roster of duly registered architects, open to public
inspection, which shall show each registered architect's
name, registration number and last known mailing address.
2.4 Public Records: The Board shall provide
reasonable access to its public records in accordance with 29
Del.C. §10001 et. seq. The Board's administrative assistant
will provide copies of public records, upon written request,
at a copy fee of 25 cents per page. Records in active use or
in storage will be made available in a reasonably expedient
manner.
2.5 2.1NCARB:
2.5.1 2.1.1 The Board shall maintain membership
in NCARB and pay the necessary costs thereof.
2.5.2 2.1.2 The Board shall keep up-to-date
information on the recommended policies adopted from time
to time by NCARB.
2.5.3 2.1.3 The Board shall cooperate with
NCARB in establishing uniform standards of architectural
registration throughout the United States.
2.6 Fees: Fees shall be determined by the Division of
Professional Regulation ("Division") under 24 Del.C. §310.
Application and examination fees shall be non-refundable, in
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 403
accordance with section 6.4
2.7 2.2 Practice of Architecture:
2.7.1 2.2.1 Only architects shall engage in the
practice of architecture as defined in Title 24, Chapter 3.
The practice of architecture means the rendering or offering
to render those services, hereinafter described, in connection
with the design and construction, enlargement or alteration
of a structure or group of structures which have as their
principal purpose human habitation or use, and the
utilization of space within and surrounding structures; the
services referred to include planning, preparing studies,
designs, drawings, specifications and other technical
submissions and furnishing administration of construction
contracts.
2.7.1.1 activities associated with detached,
single and two-family dwellings, or
2.7.1.2 routine maintenance and repair work
which does not affect structural or other safety features of
buildings, regardless of whether local authorities require a
building permit for such work.
2.2.2 Services offered in connection with the
"utilization of space within" such structures include space
planning and programming, and interior design. Services
offered in connection with the "space surrounding such
structures" include site analysis and site design.These
provisions shall not be construed to prevent or affect the
practice of landscape architecture by a landscape architect or
the practice of engineering by an engineer.
2.2.3 The seal of an architect shall not be
required for
2.2.3.1 activities associated with detached,
single and two-family dwellings, and any sheds, storage
buildings and garages incidental to such dwellings or
2.2.3.2 farm buildings, including barns, silos,
sheds or housing for farm equipment and livestock, provided
such structures are designed to be occupied by no more than
ten (10) persons; or
2.2.3.3 routine maintenance and repair work
alteration, renovation or remodeling of a structure which
does not affect structural or other safety features of buildings
the structure, regardless of whether local authorities require
a building permit for such work and when the work
contemplated by the design does not require the issuance of a
permit under applicable building codes.
3.0 Application for Registration:
3.1 Submission of Application fee: Every individual
seeking registration shall submit an application to the Board,
accompanied by the filing fee established above. Such filing
fee shall be determined in accordance with statutory criteria.
3.1.1 References from employers listed on an
application for registration must be provided to substantiate
the minimum experience required in support of education
and training standards. It is the applicant's responsibility to
see that fees references are submitted to the Board. Such
reference information shall be submitted on forms furnished
by the Board.
3.1.2 Proof of self-employment must be
substantiated with the following:
3.1.2.1 a copy of business licenses license(s)
for those duration's claimed as part of the application or a
letter from your accountant or local building official
substantiating experience, or similar objective proof of selfemployment.
3.2 Supplemental Material: Material submitted to
supplement any previously filed application must include
copies of the originally submitted application and all
material filed with that application.
3.3 3.2 Applicants; General:
3.3.1 3.2.1 Applicants needing additional
practical experience reference forms may use photostatic
copies.
3.3.2 3.2.2 The Board will take no action to
review an application until all references, transcripts and
fees are received.
3.3.3 3.2.3 An applicant is not registered until so
notified in writing by the Board.
3.3.4 3.2.4 Filing of an application, fees, etc.,
shall not be construed as completing the registration process;
the board will register applicants at regular Board meetings
only.
3.3.5 3.2.5 A license issued by the Division of
Professional Regulation certifies that the individual named
has met the qualifications of the Board to engage in practice.
3.3.6 Applicants shall use only residence addresses
when corresponding with the Board; no correspondence will
be maintained using business addresses.
3.4 3.3 Requirements of All Applicants. Applicants
Must:
3.4.1 3.3.1 submit the required fees
3.4.2 3.3.2 answer all questions on the
application form completely and legibly. using a typewriter
for all items except signatures.
3.4.3 3.3.3 obtain the notarization of the
application in the space provided. Applications shall contain
a current affidavit that has been signed and notarized within
the twelve (12) months immediately preceding presentation
of the application to the Board.
3.5 3.4 Applicants for Registration by Examination
(A.R.E.)
3.4.1 Must have filed a completed application
with the Board, including the NCARB record showing
completion of IDP training requirements.
3.5.1 must meet the education and training
requirements adopted by the Board on January 14, 1993.
3.5.2 must have filed a completed application,
including the IDP record, at least 60 days prior to the A.R.E
for which the applicant wishes to sit.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
404 PROPOSED REGULATIONS
3.5.3 must have completed the three years of
training credits and five years of education credits at least 90
days prior to the date of the A.R.E.
3.5.4 must have submitted required fees and all
transcripts, completed reference forms, etc., at least 45 days
prior to the examination for which the applicant wishes to
sit.
4.0 Registration Standards:
4.1 Registration Standards: To be granted registration
an applicant must:
4.1.1 Prior to July 9, 1997, hold a professional
degree in architecture from a degree program that has been
accredited by NAAB not later than two years after
termination or have satisfied the education requirements as
specified in the attached table A. Education requirements
shall be those mandated by 24 Del.C. §307(a)(1) of the Act
which requires an NAAB-accredited professional degree or
other education which the Board deems to be equivalent as
set forth in Table A. Petitions for equivalency determinations
shall be filed with the board for a ruling. The Board shall
evaluate the candidate's educational equivalency in
accordance with the attached table A. Applicants filing for
initial registration prior to July 9, 1997 may petition the
Board to waive the requirements of 24 Del.C. §307(a)(1),
but only if the applicant satisfies the Board's Education and
Training Requirements, adopted January 14, 1993.
4.1.2 4.1.1 After July 9, 1997, Hhold a
professional degree in architecture from a degree program
that has been is accredited by NAAB at the time of
graduation or not later than two years after termination of
enrollment. Receipt of a professional degree in architecture
from a degree program accredited by CACB will be accepted
as equivalent to a NAAB accredited professional degree in
architecture.
4.1.3 4.1.2 Prior to March 15, 1994, have at least
three years of training credits in accordance with 5.1 or have
satisfied the IDP training requirement in accordance with
5.1. Applicants who received their education outside of the
United States shall obtain and provide to the Board an
educational evaluation by EESA as directed through NAAB,
and must provide evidence of training and degree equivalent
to accredited programs. For purposes of 24 Del. C. §
307(a)(1), an evaluation by EESA of training and degree
equivalent to accredited programs constitutes such other
education as the Board deems equivalent.
4.1.3 Applicants for admittance to the A.R.E.
after March 15, 1994 and all subsequent applicants for initial
registration must submit proof of completion of an IDP
record requirements through NCARB.
4.1.4 Have passed the examination. The
examinee is permitted unlimited retakes of each part of the
A.R.E. All parts of the exam must be successfully completed
within a six year (6) duration from the date of his/her first
sitting. If all sections are not passed in the six (6) year
period, the entire examination must be taken and passed
again.
4.1.5 Have complied with all regulations of the
Board and 24 Del.C. Ch. 3 of the Delaware Code.
4.1.6 Prior to July 9, 1997 an applicant meeting
the above registration requirements except for 4.1.1 above
may nonetheless be granted a registration if the applicant
holds a high school diploma or equivalent and had
accumulated at least five years of education credits as of
June 30, 1984. The Board adopts the attached Table A as the
education requirements for Delaware licensure.
4.1.7 In evaluation records, the Board shall
apply the then current education and training standards,
provided that an applicant who qualified under the standards
current at the time of his/her application shall be evaluated
by those standards.
4.1.8 In evaluating records, the Board may, prior
to granting a registration, require substantiation of the
quality and nature of the applicant's experience,
notwithstanding the fact that the applicant has complied with
the technical registration requirements set forth above.
5.0 Training Standard (Effective until March 15,1994)
5.1 To satisfy the training standard, an applicant must
have at least three years of training credits, or have satisfied
the IDP training requirements in accordance with 5.1. The
Board expects that an applicant who has satisfied these
training standards will have been exposed to the
comprehensive process of the practice of architecture.
Accordingly, each applicant must demonstrate that his/her
training has been sufficiently diverse as to include exposure
to each of the training areas set forth in 5.1. An applicant
with three years of training credits may nonetheless be
denied registration if that training is not diversified. The
following table sets forth the ways in which training credits
can be acquired:
Credit Allowed
Description of TrainingPercent Maximum
5.1.1 Experience in architecture as an employee
in the office of a registered architect.100%No Limit
5.1.2 Experience in architecture as an employee
of an organization (other than offices of a
registered architect) when the experience
is under the direct supervision of
registered architect100% 2 years
5.1.3 Experience directly related to architecture
when under the direct supervision of a
professional engineer, landscape architect,
planner or interior designer.50%1 year
5.1.4 Experience, other than 5.1.1 and 5.1.2
and 5.1.3 experience, directly related to
on-site building construction operations
or experience involving physical analyses
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 405
of existing buildings.50% 6 months
5.1.5 A post-professional degree in architecture
or teaching or research in an NAABaccredited
architectural program.100%1 year
5.2 Explanation of Training Requirements
5.2.1 No training credits may be earned prior to
satisfactory completion of one of the
following:
5.2.1.1 three years in an NAAB-accredited
professional degree program;
5.2.1.2 the third year of a four-year preprofessional
degree program in architecture accepted for
direct entry to an NAAB-accredited professional Master's
Degree Program;
5.2.1.3 one year in an NAAB-accredited
professional Master's Degree Program;
5.2.1.4 96 semester credit hours as evaluated
by EESA in accordance with NCARB Circular of
Information No. 3, (1992-93 edition) of which no more than
60 hours can be in the general education category; or
5.2.1.5 5 education credits in the
circumstances described in 100.301 (B).
Note: 32 semester credit hours or 48 quarter
credit hours equal one year in an academic setting.
5.2.2 No experience used to meet education
requirements may be used to earn training credits.
5.2.3 Every applicant must earn at least one year
of training credits under 4.1.1 and must earn them after
satisfying 4.1.2.
5.2.4 To earn credits under 5.1.1, 5.1.2, 5.1.3
and 5.1.4, an applicant must work at least 3 5 hours per week
for a minimum period of 10 consecutive weeks under 5.1.1
or six consecutive months under 5.1.2, 5.1.3 or 5.1.4. An
applicant may earn one-half of the credits specified under
5.1.1 for work of at least 20 hours per week in periods of six
or more consecutive months. No credits will be given for
part-time work in any category other than 5.1.1.
5.2.5 To earn credits under 5.1.5, an applicant's
credit hours must be in subjects directly related to
architecture. Twenty semester credit hours or 30 quarter
credit hours of teaching or equivalent time in research will
equal one year.
5.2.6 An organization will be considered to be
an "office of an architect" if:
5.2.6.1 the architectural practice of the
organization in which the applicant works is in the charge of
a person practicing as a Principal and the applicant works
under the direct supervision of a registered architect;
5.2.6.2 the organization is not engaged in
construction;
5.2.6.3 the organization has no affiliate
engaged in construction which has a substantial economic
impact upon the person or persons in the organization
practicing as a principal; and
5.2.6.4 the architectural practice of the
organization encompasses the comprehensive process of the
practice of architecture including each of the categories
composing such practice set forth in 5.3.
5.2.7 An organization (or an affiliate) is engaged
in construction if it customarily engaged in construction or if
it customarily engages in either of the following activities:
5.2.7.1 undertakes to provide labor and/or
material for all or any construction project, whether on
lump-sum, cost-plus or other basis of compensation; or
5.2.7.2 agrees to guarantee to an owner the
maximum construction cost for all or any significant portion
of a construction project.
5.2.8 In deciding if training represents
"diversified experience in architecture," the Board will
compare the training with the training requirements set forth
in the IDP. See 5.3.
5.2.9 Applicants employed in settings descried
in 5.1.1 and 5.1.2, whose experience is not diversified, may
obtain credit only under 5.1.3.
5.2.10 The maximum credit for training as an
employee of a person practicing architecture who is not an
architect registered in a United States or Canadian
jurisdiction shall be one year. No credit will be granted for
foreign training other than as an employee of a person
practicing architecture.
5.3 5.0 IDP Training Requirements
5.3.1 5.1 After March 15, 1994, the The IDP
will be considered is a requirement for the all applicants for
initial registration in the State of Delaware. This regulation
shall be in effect for those applicants seeking admittance to
the A.R.E. after March 15, 1994 and all subsequent
applicants for initial registration. 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.
5.3.2 5.2 The 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. the National IDP
Coordinating Committee, 1735 New York Avenue N.W.,
Suite 700, Washington D.C. 20006. 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.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
406 PROPOSED REGULATIONS
5.3.3 The initiation of IDP participation and
accrual of value units may begin after satisfactory
completion of:
5.3.3.1 three years in a NAAB-accredited
professional degree program;
5.3.3.2 the third year of a four-year preprofessional
degree program in architecture accepted for
direct entry to a NAAB-accredited professional degree
program;
5.3.3.3 one year in a NAAB-accredited
Master of Architecture degree program for interns with nonprofessional
undergraduate degrees;
5.3.3.4 96 semester credit hours as evaluated
by Education Evaluation Services for Architects (EESA) of
which no more than 60 hours can be in the general education
subject area; or
5.3.3.5 "five years of equivalent education" in
accordance with the Board's Regulations Table A. This
option shall expire effective July 9, 1997.
5.3.4 The intern is responsible for initiating an
NCARB Council Record within a time frame which will
permit conformance with the Board's application deadline
for examination.
5.3.5 The intern is responsible for obtaining
applicable training credits which conform to the Board's
rules and regulations.
5.3.6 The Intern is responsible for providing
NCARB with written notification of his/her intent to take the
examination 90 days prior to the Board's application
deadline for examination in order to insure timely
notification of the Board.
5.3.7 The Board will review the NCARB
recommendation for admission to the examination and notify
the candidate according to the schedule established by
NCARB and the Board for the administration of the A.R.E
5.3.8 Preparation of all components of the IDP
record for references, transcripts, training, etc. will be done
in accordance with NCARB standards. The NCARB
Council Record will be accepted as verification of education
and training requirements for initial registration.
5.4 5.3 Reciprocity
5.4.1 Registration through reciprocity
applications shall be governed by 24 Del.C. §309.
6.0 Examination
6.1 Conditions of Examination
6.1.1 A proctor assigned by the Board will be
present during each division of the examination.
6.1.2 Grading of the examination shall be in
accordance with the national grading procedure administered
by NCARB.
6.1.3 The Board shall adopt the scoring
procedures recommended by NCARB.
6.1.4 No information pertaining to the subject
matter of the Examination will be given to applicants in
advance, except as specifically authorized by the Board.
6.1.5 The Board, in its discretion, may approve
transfer credits for parts of examinations passed prior to the
1983 A.R.E in accordance with the transfer table on page
10A. Information as to transfer credits will be provided,
when appropriate, to applicants requesting application
forms. After 5 years of additional training credits in 100.302
(A) (1) or (2), the applicant will not be required to pass
additional divisions of the A.R.E.
6.1.6 Effective in 1993, candidates for initial
registration may be permitted to take those parts of the
A.R.E. offered at times other than June, prior to sitting for
the complete exam (offering the A.R.E. or portion thereof at
times other than June, is subject to the discretion of the
Board).
6.1.7 The examine is permitted unlimited
retakes of each part of the A.R.E. All parts of the exam must
be successfully completed within a six-year duration from
the date of his/her first sitting. If all sections are not passed
in the 6 year period, the entire examination must be taken
and passed again.
6.2 Application Deadline
6.2.1 Each applicant deemed eligible to take the
Examination shall be notified of the dates set for each
division of the Examination, the location at which the
Examination shall be held, the instruments and materials he/
she shall supply an/or be permitted to bring to the
Examination, the deadline for applying to take the
Examination, and other necessary information.
6.3 Examination Fee- The fee for the examination shall
be determined by the Division of Professional Regulation.
6.4 Refund of Fee - No refund of the application and/or
examination fee shall be returned to any applicant.
6.5 Transfer of Scores from Other Boards - The Board
in its discretion and upon proper application, may accept
passing scores achieved on divisions of the A.R.E.
administered and attested to by another NCARB member
board.
6.6 Transfer of Scores to Other Boards- The Board, in
its discretion and upon proper application, may forward the
grades achieved by an applicant in the various divisions of
the Examination given under the Board's jurisdiction to any
other duly constituted architectural registration board and to
NCARB for use in evaluating such applicant's eligibility for
licensure.
7.0 6.0 Registration
7.1 Issuance - When the Board has determined that an
applicant for registration has satisfied the registration
standards set forth herein, the Board shall issue a Certificate
of Registration containing the registered applicant's name
and registration number.
7.2 6.1 Duration- Each certificate of registration issued
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 407
by the Board shall be valid for two years, or the expiration of
the current licensing period.
6.2 Continuing Education Requirement For Renewal -
For license or registration periods beginning August 1, 2003,
and thereafter, each holder of a Certificate of Registration
shall complete twenty (20) 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.
6.3 Content: 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.
6.4 Hardship 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.
6.5 Late Renewal - A licensee that has failed to renew
on or before the renewal date may apply to renew their
expired certificate of registration within twelve (12) months
following the renewal date. Such late renewal application
must be accompanied by payment of the renewal fee,
payment of a late fee, and documentation of compliance with
the continuing education requirement.
7.3 6.6 Not Transferable - A certificate of registration
shall not be transferable.
7.4 6.7 Revocation, Suspension, Cancellation or Nonrenewal
of Registration - In the event of revocation,
cancellation, suspension or non renewal of any registration,
the registered architect shall be required immediately to
return his/her Certificate of Registration, seal and license to
the Board.
8.0 7.0 Rules of Professional Conduct - All architects
shall abide by these Rules of Professional Conduct.
8.1 7.1 Competence
8.1.1 7.1.1 In engaging in the practice When
practicing of architecture, an architect shall act with
reasonable care and competence, and shall apply the
technical knowledge and skill which are ordinarily applied
by architects of good standing, practicing in the same
locality.
8.1.2 7.1.2 In designing a project, an architect
shall take into account applicable building laws and
regulations. While a registered architect may rely on the
advice of other professionals (e.g., attorneys, engineers and
other qualified persons) as to the intent and meaning of such
regulations, once having obtained such advice, an architect
shall not knowingly design a project in violation of such
laws and regulation.
8.1.3 7.1.3 An architect shall undertake to
perform professional services only when her or she, together
with those whom the architect may engage as consultants, is
qualified by education, training and experience in the
specific technical areas involved.
8.1.4 7.1.4 No individual shall be permitted to
engage in the practice of architecture if, in the Board's
judgment, such individual's professional competence is
substantially impaired by physical or mental disabilities.
8.2 7.2 Conflict of Interest
8.2.1 7.2.1 An architect shall not accept
compensation for his/her services from more than one party
on a project unless the circumstances are fully disclosed to
and agreed to by (such disclosure and agreement to be in
writing) all interested parties.
8.2.2 7.2.2 If an architect has any business
association or direct or indirect financial interest which is
substantial enough to influence his/her judgment in
connection with the performance of professional services,
the architect shall fully disclose in writing to his/her client or
employee the nature of the business association or financial
interest. If the client or employee objects to such association
or financial interest, the architect will either terminate such
association or interest or offer to give up the commission or
employment.
8.2.3 7.2.3 An architect shall not solicit or accept
compensation from material or equipment suppliers in return
for specifying or endorsing their products.
8.2.4 7.2.4 When acting as the interpreter of
building contract documents and the judge of contract
performance, an architect shall render decisions impartially,
favoring neither party to the contract.
8.3 7.3 Full Disclosure
8.3.1 7.3.1 An architect, making public
statements on architectural questions, shall disclose when
he/she is being compensated for making such statements.
8.3.2 7.3.2 An architect shall accurately represent
to prospective or existing client or employee his/her
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
408 PROPOSED REGULATIONS
responsibility in connection with work for which he/she is
claiming credit.
8.3.3 7.3.3 If, in the course of his/her work on a
project, an architect becomes aware of a decision taken by
his/her employer or client, against such registered architect's
advice, which violates applicable state or-municipal building
laws and regulations which will, in the registered architect's
judgment, materially and adversely affect the safety to the
public of the finished project, the architect shall:
8.3.3.1 7.3.3.1 report the decision to the
local building inspector or other public official charged with
the enforcement of the applicable state or municipal building
laws and regulations; and
8.3.3.2 7.3.3.2 refuse to consent to the
decision; and
8.3.3.3 7.3.3.3 in circumstances where the
architect reasonably believes that other such decisions will
be taken, notwithstanding his/her objection, terminate his/
her services with respect to the project. In the case of a
termination in accordance with clause 3, the architect shall
have no liability to his/her client or employer on account of
such termination.
8.3.4 7.3.4 An architect shall not deliberately
make a materially false statement or fail deliberately to
disclose a material fact requested in connection with his/her
application for a registration or renewal thereof.
8.3.5 7.3.5 An architect possessing knowledge of
a violation of the provisions set forth in 100.806 7.0 by
another architect shall report such knowledge to the Board.
8.4 7.4 Compliance with Laws
8.4.1 7.4.1 An architect shall not, in the conduct
of his or her practice, knowingly violate any state, federal or
local law, rule or regulation.
8.4.2 7.4.2 An architect shall neither offer nor
make any payment or gift to a government official (whether
elected or appointed) with the intent of influencing the
official's judgment in connection with a prospective or
existing project in which the architect is interested.
8.4.3 7.4.3 An architect shall comply with the
registration laws and regulations governing his/her
professional practice in any United States jurisdiction.
8.5 7.5 Professional Conduct
8.5.1 7.5.1 Each office in Delaware maintained
for the preparation of drawing, specifications, reports or
other professional work offering architectural services shall
have an architect resident and regularly employed in that
office having direct supervision of such work.
8.5.2 7.5.2 An architect shall not sign or seal
technical submissions unless they were prepared under his/
her direct supervision; provided, however, that in the case of
the portions of such technical submission prepared under the
direct supervision of another architect employed by the first
registered (or by his/her firm), he or she may sign or seal
those portions of the professional work if the architect has
reviewed such portions and has coordinated their
preparation. An architect may sign and seal technical
submissions only if the technical submissions were: (i)
prepared by the architect; (ii) prepared by persons under the
architect's responsible control; or (iii) prepared by another
architect registered in this State if the signing and sealing
architect has reviewed the other architect's work and either
has coordinated the preparation of the work or has integrated
the work into his or her own technical submissions.
"Responsible control" shall be that amount of control over
and detailed professional knowledge of the content of
technical submissions during their preparation as is
ordinarily exercised by architects applying the required
professional standard of care. Reviewing, or reviewing and
correcting, technical submissions after they have been
prepared by others does not constitute the exercise of
responsible control because the reviewer has neither control
over nor detailed knowledge of the content of such
submissions throughout their preparation. Any registered
architect signing or sealing technical submissions not
prepared by that architect but prepared under the architect's
responsible control by persons not regularly employed in the
office where the architect is resident, shall maintain and
make available to the Board upon request for at least five (5)
years following such signing and sealing, adequate and
complete records demonstrating the nature and extent of the
architect's control over and detailed knowledge of such
technical submissions throughout their preparation.
"Technical submissions" are designs, drawings,
specifications, studies, and other technical reports prepared
in the course of practicing architecture."
8.5.3 7.5.3 An architect shall neither offer nor
make any gifts, other than gifts of nominal value (including,
for example, reasonable entertainment and hospitality), with
the intent of influencing the judgment of an existing or
prospective client in connection with a project in which the
architect is interested.
8.5.4 An architect shall no engage in conduct
involving fraud or wanton disregard of the rights of others.
8.6 7.6 Design and Use of Architect's Seal
8.6.1 7.6.1 Pursuant to 24 Del.C. §313, and
subject to 6.7 and 7.5, each architect shall procure a seal,
which shall contain the name of the architect; his/her
registration number and the phrase REGISTERED
ARCHITECT--STATE OF DELAWARE. This seal shall
comply in all respects, including size and format, with the
specimen shown below. The architect shall use his/her legal
name on the Certificate of Registration, the seal and the
license.
8.6.2 7.6.2 As required by 24 Del.C. §313, the
seal shall be imprinted on all technical submissions, as
follows: On each design and each drawing; on the cover or
each set of specifications and on the cover page of all other
technical submissions. The original signature of the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 409
individual named on the seal shall appear across the face of
each original seal imprint.
8.6.3 7.6.3 The seal appearing on any technical
submission shall be prima facie evidence that said technical
submission was prepared by or under the direct supervision
of the individual named on said submission.
8.6.4 7.6.4 All technical submissions prepared by
an architect shall contain the following legend wherever the
architect's seal appears: "The professional services of the
architect are undertaken for and are performed in the interest
of [name of person employing architect]. No contractual
obligation is assumed by the architect for the benefit of any
other person involved in the project."
9.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
9.1 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.
9.2 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.
9.3 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).
9.4 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.
9.5 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.
9.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
9.6.1 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.
9.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
9.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
9.6.4 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.
9.6.5 Agreement by the regulated professional
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
410 PROPOSED REGULATIONS
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.
9.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
9.7 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.
9.8 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.
9.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
9.10 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.
9.11 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 non disciplinary matter.
9.12 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.
Delaware Board of Architects Examination Transition Rule
Adopted January 14, 1993
Any Delaware applicant who has taken any section of the
NCARB examination prior to 1983, but who has not passed
one or more of the NCARB exams listed in Column A
below, must take the ARE Division listed in Column B to
complete the Delaware examination requirements.
Column A Column B
Qualifying Test + Professional ExamArchitect Registration
Exam
Sections Prior to 1983 Divisions
Qualif. Test Section AArch. Theory & History*
OR
Prof Exam Section B-IEnv. AnalysisA - PRE DESIGN
OR
Prof Exam Sect B-IIProgramming
Prof Exam Section ASite Plan/DesignB - SITE DESIGN
C - BLDG. DESIGN
Prof Exam Section B-IIIDesign Tech#BUILDING
SYSTEMS
D - STRUCT GEN'L
Qualif Test, Section BStructural TechE - STRUCTURAL
LAT. FORCES
F-STRUCTURAL
LONG SPAN
Qualif Test Section DEnv Control SystemsG - MECH/
PLBG, etc.
Qualif Test Section CM/M of ConstructionH - MTRLS/
METHODS
Prof. Exam Sect B-IVConstructionI - CNSTR DOC/SVCS
*Candidates who have not passed either Part I or Part II of
the Professional Exam, Section B or Section A of the
Qualifying Exam must pass Division A - Pre-Design of the
A.R.E. *Candidates who have not passed part III of the
Professional Exam, Section B Design Technology, must pass
Division H- Materials & Methods of the A.R.E.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF OCCUPATIONAL THERAPY
24 DE Admin. Code 2000
Statutory Authority: 24 Delaware Code
Section 2006(a)(1) (24 Del. C. 2006(a)(1))
The Delaware Board of Occupational Therapy in
accordance with 24 Del.C. §2006(a)(1) proposes changes to
its rules and regulations. The changes in Rules 2.0 and 5.0
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 411
institute continuing education as a refresher for applicants
who delay licensure after passing the NBCOT exam and
clarify the continuing education requirements for licensees.
A public hearing will be held at 4:00 p.m. on November
20, 2002 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 Delaware Board of
Occupational Therapy, c/o Vicki Gingrich, 861 Silver Lake
Blvd., Cannon Building, Suite 203, Dover DE 19904.
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.
1.0 Supervision/consultation Requirements for
Occupational Therapy Assistants
1.1 "Occupational therapy assistant" shall mean a
person licensed to assist in the practice of occupational
therapy under the supervision of an occupational
therapist. 24 Del.C. §2002(4).(emphasis added)
"Under the supervision of an occupational
therapist" means the interactive process between the licensed
occupational therapist and the occupational therapy
assistant. It shall be more than a paper review or cosignature.
The supervising occupational therapist is
responsible for insuring the extent, kind, and quality of the
services rendered by the occupational therapy assistant.
The phrase, "Under the supervision of an
occupational therapist," as used in the definition of
occupational therapist assistant includes, but is not limited to
the following requirements:
1.1.1 Communicating to the occupational
therapy assistant the results of patient/client evaluation and
discussing the goals and program plan for the patient/client;
1.1.2 In accordance with supervision level and
applicable health care, educational, professional and
institutional regulations, reevaluating the patient/client,
reviewing the documentation, modifying the program plan if
necessary and co-signing the plan.
1.1.3 Case management;
1.1.4 Determining program termination;
1.1.5 Providing information, instruction and
assistance as needed;
1.1.6 Observing the occupational therapy
assistant periodically; and
1.1.7 Preparing on a regular basis, but at least
annually, a written appraisal of the occupational therapy
assistant’s performance and discussion of that appraisal with
the assistant.
The supervisor may assign to a competent
occupational therapy assistant the administration of
standardized tests, the performance of activities of daily
living evaluations and other elements of patient/client
evaluation and reevaluation that do not require the
professional judgment and skill of an occupational therapist.
1.2 Supervision for Occupational Therapy Assistants is
defined as follows:
1.2.1 Direct Supervision requires the
supervising occupational therapist to be on the premises and
immediately available to provide aid, direction, and
instruction while treatment is performed in any setting
including home care. Occupational therapy assistants with
experience of less than one (1) full year are required to have
direct supervision.
1.2.2 Routine Supervision requires direct
contact at least every two (2) weeks at the site of work, with
interim supervision occurring by other methods, such as
telephonic or written communication.
1.2.3 General Supervision requires at least
monthly direct contact, with supervision available as needed
by other methods.
1.3 Minimum supervision requirements:
1.3.1 Occupational therapy assistants with
experience of less than one (1) full year are required to have
direct supervision.
Occupational therapy assistants with
experience greater than one (1) full year must be supervised
under either direct, routine or general supervision based
upon skill and experience in the field as determined by the
supervising OT.
1.3.2 Supervising occupational therapists must
have at least one (1) year clinical experience after they have
received permanent licensure.
1.3.3 An occupational therapist may supervise
up to three (3) occupational therapy assistants but never
more than two (2) occupational therapy assistants who are
under direct supervision at the same time.
1.3.4 Levels of supervision should be
determined by the occupational therapist before the
individuals enter into a supervisor/supervisee relationship.
The chosen level of supervision should be reevaluated
regularly for effectiveness.
1.3.5 The supervising occupational therapist, in
collaboration with the occupational therapy assistant, shall
maintain a written supervisory plan specifying the level of
supervision and shall document the supervision of each
occupational therapy assistant. Levels of supervision should
be determined by the occupational therapist before the
individuals enter into a supervisor/supervisee relationship.
The chosen level of supervision should be reevaluated
regularly for effectiveness. This plan shall be reviewed at
least every six months or more frequently as demands of
service changes.
1.3.6 A supervisor who is temporarily unable to
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
412 PROPOSED REGULATIONS
provide supervision shall arrange for substitute supervision
by an occupational therapist licensed by the Board with at
least one (1) year of clinical experience, as defined above, to
provide supervision as specified by Rule 1.0 of these rules
and regulations.
See 2 DE Reg. 2040 (5/1/99)
2.0 Licensure Procedures:
2.1 To apply for an initial license, including relicensure
after expiration, an applicant shall submit to the
Board:
2.1.1 A completed notarized application on the
form approved by the Board;
2.1.2 Verification of a passing score on the
NBCOT standardized exam submitted by the exam service
or NBCOT;
2.1.2.1 If the date of application for licensure
is more that three years following the successful completion
of the NBCOT exam, the applicant shall submit proof of
twenty (20) hours of continuing education in the two years
preceding the application in accordance with Rule 5.0 of
these rules and regulations.
2.1.3 Official transcript and proof of successful
completion of field work submitted by the school directly to
the Board office;
2.1.4 Fee payable to the State of Delaware.
2.2 To apply for a reciprocal license, in addition to the
requirements listed in 24 Del.C. §2011, an applicant shall
submit the following to the Board:
2.2.1 A completed notarized application on the
form approved by the Board;
2.2.2 Verification of a passing score on the
NBCOT standardized exam submitted by the exam service
or NBCOT;
2.2.3 Letter of verification from any state in
which the applicant has been licensed (the applicant is
responsible for forwarding the blank verification form to all
states where they are now or ever have been licensed);
2.2.4 Fee payable to the State of Delaware.
2.3 To apply for renewal, an applicant shall submit:
2.3.1 A completed renewal application on the
form approved by the Board;
2.3.2 Evidence of meeting continuing education
requirements as designated by the Board in Rule 5;
2.3.3 Renewal fee payable to the State of
Delaware.
2.4 To apply for inactive status:
A licensee may, upon written request to the Board,
have his/her license placed on inactive status if he/she is not
actively engaged in the practice of occupational therapy in
the State.
2.5 To apply for reactivation of an inactive license, a
licensee shall submit:
2.5.1 A letter requesting reactivation;
2.5.2 A completed application for renewal
2.5.3 Proof of continuing education attained
within the past two years (20 contact hours). The twenty (20)
hours must be in accordance with Rule 5.0 of these rules and
regulations;
2.5.4 Fee payable to the State of Delaware.
2.6 To apply for reinstatement of an expired license, an
applicant shall submit (within three (3) years of the
expiration date):
2.6.1 A completed application for renewal;
2.6.2 Proof of continuing education attained
within the past two years (20 contact hours). The twenty
(20) hours must be in accordance with Rule 5.0 of these rules
and regulations;
2.6.3 Licensure and late fee payable to the State
of Delaware.
3.0 Temporary Licensure/Examination Eligible OT:
3.1 To apply for a temporary license, an applicant shall
submit to the Board:
3.1.1 A completed, notarized application on the
form approved by the Board;
3.1.2 Official transcript and proof of successful
completion of field work submitted by the school directly to
the Board office;
3.1.3 A letter indicating the date on which the
applicant proposes to take the NBCOT examination;
3.1.4 A signed agreement from an occupational
therapist currently licensed by the state of Delaware
certifying that the applicant will be supervised while
practicing, in accordance with the definitions for supervision
as stated herein, in 3.3;
3.1.5 Fee payable to the State of Delaware.
3.2 Following the examination, the temporary licensee
shall submit to the Board a notarized copy of the verification
of exam scores, if the Board has not directly received the
results of the examination. If the temporary licensee has not
successfully passed the examination the temporary license
will be surrendered to the Board immediately upon
notification of exam results.
3.3 Supervision of the exam-eligible occupational
therapist with a temporary license shall be defined as
follows:
3.3.1 The supervising occupational therapist
must hold a current license to practice in the state of
Delaware;
3.3.2 Must have completed a minimum of one
year of practice from the date of their permanent licensure
status;
3.3.3 Supervision must consist of daily face to
face contact between the supervisor and the temporary
licensee;
3.3.4 The supervising occupational therapist
shall at no time supervise more than four (4) temporarily
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 413
licensed occupational therapists. In the event that the
temporary licensees should be working at separate sites, the
supervising therapist shall supervise no more than two (2)
temporarily-licensed therapists. A supervising therapist can
assume responsibility for no more than five (5) including
temporarily licensed OTs and OTAs and licensed OTAs.
4.0 Temporary Licensure/Examination Eligible OTA:
4.1 To apply for a temporary license, an applicant shall
submit to the Board:
4.1.1 A completed, notarized, application on the
form provided by the Board;
4.1.2 Official transcript and proof of successful
completion of field work submitted by the school directly to
the Board Office;
4.1.3 A letter indicating the date on which the
applicant proposes to take the NBCOT examination;
4.1.4 A signed agreement from an occupational
therapist currently licensed by the state of Delaware
certifying that the applicant will be supervised while
practicing, in accordance with the definitions for supervision
as stated herein, in 4.3;
4.1.5 Fee payable to the State of Delaware.
4.2 Following the examination, if the Board has not
directly received the results of the examination, the
temporary licensee shall submit to the Board a notarized
copy of the verification of exam scores. If the temporary
licensee has not successfully passed the examination, the
temporary license will be surrendered to the Board
immediately upon notification of exam results.
4.3 Supervision for the examination-eligible
occupational therapy assistant with a temporary license shall
be defined as follows:
4.3.1 The supervising occupational therapist
must hold a current license to practice in the state of
Delaware;
4.3.2 Must have completed a minimum of one
year of practice from the date of their permanent licensure
status;
4.3.3 Direct Supervision as defined in Rule 1
shall be required of all temporarily licensed occupational
therapy assistants;
4.3.4 The supervising occupational therapist
shall at no time supervise more than three (3) temporarily
licensed occupational therapy assistants. A supervising
therapist can assume responsibility for no more than five (5)
including temporarily licensed OT, OTAs and licensed
OTAs).
5.0 Continuing Education:
5.1 Continuing Education Units (CEUs):
5.1.1 Proof of continuing education (CE) is
required for license renewal and shall be submitted by May
31 of each renewal year. A licensee who submits continuing
education that is not approved by the Board will be notified
so that he or she may obtain additional CEU’s to substitute
before the license expiration date of July 31.
5.1.2 A log of CE on a form approved by the
Board shall be maintained and submitted. Documentation of
the CE should not be routinely sent with the log but must be
retained during the licensure period to be submitted if the
renewal application is selected for CE audit. Random audits
will be performed by the Board to ensure compliance with
the CE requirement. Licensees selected for the random audit
shall submit attendance verification.
5.1.3 Contact hours shall be prorated for new
licensees in accordance with the following schedule:
5.1.1 5.1.3.1**21 months up to and including 24
months remaining in the licensing cycle requires 20 hours
5.1.2 5.1.3.2**16 months up to and including 20
months remaining in the licensing cycle requires 15 hours
5.1.3 5.1.3.3**11 months up to and including 15
months remaining in the licensing cycle requires 10 hours
5.1.4 5.1.3.4**10 months or less remaining in the
licensing cycle exempt
5.2 Definition of Acceptable Continuing Education
Credits:
Activities must be earned in two (2) or more of the
seven (7) six (6)categories for continuing education
beginning in section 5.5.
5.3 Continuing Education Content:
5.3.1 Activities must be a structured educational
experience beyond entry-level academic degree level in a
field of health and social services related to occupational
therapy, must be related to a licensee’s current or anticipated
roles and responsibilities in occupational therapy, and must
directly or indirectly serve to protect the public by enhancing
the licensee’s continuing competence.
5.3.2 Approval will be at the discretion of the
Board. A licensee or continuing education provider may
request prior approval by the Board by submitting an outline
of the activity at least six weeks before it is scheduled.
5.3.3 CEUs earned in excess of the required
credits for the two (2) year period may not be carried over to
the next biennial period.
5.4 Definition of Contact Hours:
5.4.1 Academic course work, correspondence
courses, or seminar/workshop shall be equivalent to one (1)
contact hour.
5.4.2 One (1) academic semester hour shall be
equal to fifteen (15) contact hours.
5.4.3 One (1) academic quarter hour shall be
equal to ten (10) contact hours.
5.4.4 The preparing of original lectures,
seminars, or workshops in occupational therapy or health
care subjects shall be granted one (1) contact hour for
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
414 PROPOSED REGULATIONS
preparation fro each contact hour of presentation. Credit for
preparation shall be give for the first presentation only.
Credit is given for substantive content only and not for
breaks
5.5 Categories for Continuing Education Activities:
5.5.1 Courses: The maximum credit number of
hours for course work which shall not exceed nineteen(19)
hours, (1.9 CEUs). are hour-for hour program content only,
courses from Extension courses, refresher courses,
workshops, seminars, lectures, conferences, and non
patient-specific in-service training qualify under this
provision as long as they satisfy the criteria in 5.3.1. inservices,
as long as they enhance occupational therapy
services. Excluded are any job related duties in the
workplace such a fire safety, OSHA or CPR. Also excluded
are courses covering documentation for reimbursement or
other business matters.
5.5.1.1 Course work involving alternative
therapies shall be limited to five(5) hours, (5.0 CEUs).
5.5.1.2 Course work by homestudy/
correspondence shall be limited to ten (10)
hours, (1.0 CEU)
5.5.2 Professional Meetings & Activities: The
maximum number of credit hours shall not exceed ten (10)
hours, (1.0 CEU). Approved credit includes attendance at:
DOTA business meetings, AOTA business meetings, AOTA
Representative Assembly meetings. NBCOT meetings, OT
Licensure Board meetings and AOTA National Round Table
discussions. Credit will be given for participation as an
elected or appointed member/officer on a board, committee
or council in the field of health and social service related to
occupational therapy. Seminars or other training related to
management or administration are considered professional
activities. Excluded are any job related meetings such a
department meetings, supervision of students and business
meetings within the work setting.
5.5.3 Publications: The maximum number of
credit hours shall not exceed fifteen (15) hours, (1.5CEUs).
These include writing chapters, books, abstracts, book
reviews accepted for publication and media/video for
professional development in any venue. Prior approval by
the Board for individual credit is mandatory for the licensee.
Publications submitted at the close of the licensure period,
which have not been previously reviewed and approved by
the Board, will not be considered for continuing education
credits.
5.5.4 Presentations: The maximum number of
credit hours shall not exceed fifteen (15) hours, (1.5 CEUs).
This includes workshops and community service
organizations presentations that the licensee presents. Credit
will not be given for the presentation of information that the
licensee has already been given credit for under another
category. Excluded are presentations that are part of a
licensee’s job duties. The preparation of original lectures,
seminars, or workshops in occupational therapy or health
care subjects shall be granted one (1) hour (0.1 CEU) for
preparation for each contact hour of presentation. Credit for
preparation shall be given for the first presentation only.
5.5.5 Research/Grants: May be used one time
for CEUs per study/topic regardless of length of project, not
to exceed ten (10) hours, (1.0 CEU). CEUs accumulated
under this category may not be used under the publication
category. Licensees must submit documentation of
authorship or letters from authorizing entity to receive
continuing education credit. Documentation must be
presented for prior Board approval to determine the number
of CEU hours.
5.5.6 Specialty Certification: Approval of credit
hours for specialty certification, requiring successful
completion of courses and exams attained during the current
licensure period will be at the discretion of the Board.
Examples include Certified Hand Therapist (CHT) and
Certified Pediatric Occupational Therapist (BCP).
5.5.7 Home Study Courses: The maximum
number of credit hours shall not exceed ten (10) hours, (1.0
CEUs). These include distance learning and correspondence
courses. Documentation must be presented for prior Board
approval for home study courses
5.6 The Board may waive or postpone all or part of the
continuing education activity requirements of these
regulations if an occupational therapist or occupational
therapy assistant submits written request for a waiver and
provides evidence to the satisfaction of the Board of an
illness, injury, financial hardship, family hardship, or other
similar extenuating circumstance which precluded the
individual’s completion of the requirements.
6.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
6.1 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.
6.2 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.
6.3 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
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 415
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
6.4 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.
6.5 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.
6.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
6.6.1 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.
6.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
6.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
6.6.4 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.
6.6.5 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.
6.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
6.7 The regulated professional's records of participation
in the Voluntary Treatment Option will not reflect
disciplinary action and shall not be considered public 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.
6.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
6.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
6.10 Failure to enter into such agreement or to
comply with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
416 PROPOSED REGULATIONS
proceedings as appropriate.
6.11 Any person who reports pursuant to this
section in good faith and without malice shall be immune
from any civil, criminal or disciplinary liability arising from
such reports, and shall have his/her confidentiality protected
if the matter is handled in a non disciplinary matter.
6.12 Any regulated professional who complies with
all of the terms and completes the Voluntary Treatment
Option shall have his/her confidentiality protected unless
otherwise specified in a participating Board's rules and
regulations. In such an instance, the written agreement with
the regulated professional shall include the potential for
disclosure and specify those to whom such information may
be disclosed.
DEPARTMENT OF AGRICULTURE
HARNESS RACING COMMISSION
Statutory Authority: 3 Delaware Code,
Section 10027 (3 Del.C. §10027
The Harness Racing Commission issues these proposed
rules pursuant to 3 Del.C. §10005 and 29 Del.C. §10115.
The Commission will accept written comments from
October 1, 2002 through October 30, 2002. The
Commission will hold a public hearing on the proposed
amendments on October 21, 2002 at 12:00 p.m. at
Harrington Raceway, Harrington, DE. Written comments
should be submitted to John Wayne, Administrator of
Racing, Delaware Harness Racing Commission, 2320 S.
DuPont Highway, Dover, DE 19901.
The Commission proposes to amend the Rules as
follows: 1) amend Rule 6.2.9 to prohibit trailing horses on a
half-mile track; 2) amend Rule 8.3.6 to further clarify that
the use of phenylbutazone in two year old horses is
prohibited and the penalty for violations; 3) enact a new
Rule 8.7 to prohibit the possession or use of drugs or
substances for which there is no analytical method to detect
such as erythropoietin, darbepoietin, and perfluocarbon, and
prohibit the possession or use of any drug or substance not
approved by the FDA; 4) amend Rule 10.2.7.4 to require
written notice to licensees of license and disciplinary
decisions.
6.2 Overnight Events
6.2.1 General Provisions
6.2.1.1 For the purpose of this rule, overnight
events shall include conditioned, claiming, preferred,
invitational, handicap, open, free-for-all, schooling or
matinee races or a combination thereof.
6.2.1.2 At extended meetings, condition
sheets must be available to participants at least 18 hours
prior to closing declarations to any race program contained
therein. At other meetings, conditions must be posted and
available to participants at least 18 hours prior to closing
declarations.
6.2.1.3 A fair and reasonable racing
opportunity shall be afforded both trotters and pacers in
reasonable proportion from those available and qualified to
race.
6.2.1.4 Substitute races may be provided for
each race program and shall be so designated in condition
books sheets. A substitute race may be used when a regularly
scheduled race fails to fill.
6.2.1.5 Regularly scheduled races or
substitute races may be divided where necessary to fill a
program of racing, or may be divided and carried over to a
subsequent racing program, subject to the following:
6.2.1.5.1No such divisions shall be used in
the place of regularly scheduled races which fill.
6.2.1.5.2Where races are divided in order
to fill a program, starters for each division must be
determined by lot after preference has been applied, unless
the conditions provide for divisions based upon age,
performance, earnings or sex may be determined by the
racing secretary.
6.2.1.5.3However, where necessary to fill
a card, not more than three races per day may be divided into
not more than three divisions after preference has been
applied. The divisions may be selected by the racing
secretary. For all other overnight races that are divided, the
division must be by lot unless the conditions provide for a
division based on performance, earnings or sex.
6.2.2 Conditions
6.2.2.1 Conditions may be based only on:
6.2.2.1.1 horses' money winnings in a
specified number of previous races or during a specified
previous time;
6.2.2.1.2 horses' finishing positions in
a specified number of previous races or during a specified
period of time;
6.2.2.1.3 age, provided that no horse
that is 15 years of age or older shall be eligible to perform in
any race except in a matinee race;
6.2.2.1.4 sex;
6.2.2.1.5 number of starts during a
specified period of time;
6.2.2.1.6 special qualifications for
foreign horses that do not have a representative number of
starts in the United States or Canada;
6.2.2.1.7 the exclusion of schooling
races; or
6.2.2.1.8 Delaware-owned or bred
races as specified in 3 Del. C. §10032; or
6.2.2.1.9 any one or more
combinations of the qualifications herein listed.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 417
6.2.2.2 Conditions shall not be written in such
a way that any horse is deprived of an opportunity to race in
a normal preference cycle. Where the word preference is
used in a condition, it shall not supersede date preference as
provided in the rules. Not more than three also eligible
conditions shall be used in writing the conditions for
overnight events.
6.2.2.3 The Commission may, upon
application from the racing secretary, approve conditions
other than those listed above for special events.
6.2.2.4 In the event there are conflicting
published conditions and neither one nor the other is
withdrawn by the association, the one more favorable to the
declarer shall govern.
6.2.2.5 For the purpose of eligibility, a racing
season or racing year shall be the calendar year. All races
based on winnings will be programmed as Non-Winners of a
multiple of $100 plus $1 or Winners over a multiple of $100.
Additional conditions may be added. When recording
winnings, gross winnings shall be used and cents shall be
disregarded. In the case of a bonus, the present value of the
bonus shall be credited to the horse as earnings for the race
or series of races for which it received the bonus. It shall be
the responsibility of the organization offering the bonus to
report the present value of the bonus to the United States
Trotting Association in a timely manner.
6.2.2.6 Records, time bars shall not be used
as a condition of eligibility.
6.2.2.7 Horses must be eligible when
declarations close subject to the provision that:
6.2.2.7.1 Wins and winnings on or
after the closing date of declarations shall not be considered;
6.2.2.7.2 Age allowances shall be
given according to the age of the horse on the date the race is
contested.
6.2.2.7.3 In mixed races, trotting and
pacing, a horse must be eligible under the conditions for the
gait at which it is stated in the declaration the horse will
perform.
6.2.2.8 When conditions refer to previous
performances, those performances shall only include those
in a purse race. Each dash or heat shall be considered as a
separate performance for the purpose of condition races.
6.2.2.9 In overnight events, not more than
one trailer shall be permitted, regardless of the size of the
track except with the approval of the Commission on a half
mile racetrack there shall be no trailing horses. On a bigger
racetrack there shall be no more than one trailing horse. At
least eight feet per horse must be provided the starters in the
front tier.
6.2.2.10 The racing secretary may reject the
declaration to an overnight event of any horse whose past
performance indicates that it would be below the competitive
level of other horses declared to that particular event.
8.0 Veterinary Practices, Equine Health Medication
8.1 General Provisions
The purpose of this Rule is to protect the integrity
of horse racing, to ensure the health and welfare of race
horses and to safeguard the interests of the public and the
participants in racing.
8.2 Veterinary Practices
8.2.1 Veterinarians Under Authority of
Commission Veterinarian
Veterinarians licensed by the Commission and
practicing at any location under the jurisdiction of the
Commission are subject to these Rules, which shall be
enforced under the authority of the Commission Veterinarian
and the State Steward. Without limiting the authority of the
State Steward to enforce these Rules, the Commission
Veterinarian may recommend to the State Steward or the
Commission the discipline which may be imposed upon a
veterinarian who violates the rules.
8.2.2 Treatment Restrictions
8.2.2.1 Except as otherwise provided by this
subsection, no person other than a veterinarian licensed to
practice veterinary medicine in this jurisdiction and licensed
by the Commission may administer a prescription or
controlled medication, drug, chemical or other substance
(including any medication, drug, chemical or other substance
by injection) to a horse at any location under the jurisdiction
of the Commission.
8.2.2.2 This subsection does not apply to the
administration of the following substances except in
approved quantitative levels, if any, present in post-race
samples or as they may interfere with post-race testing:
8.2.2.2.1 a recognized non-injectable
nutritional supplement or other substance approved by the
official veterinarian;
8.2.2.2.2 a non-injectable substance on the
direction or by prescription of a licensed veterinarian; or
8.2.2.2.3 a non-injectable
non-prescription medication or substance.
8.2.2.3 No person shall possess a hypodermic
needle, syringe or injectable of any kind on association
premises, unless otherwise approved by the Commission. At
any location under the jurisdiction of the Commission,
veterinarians may use only one-time disposable needles, and
shall dispose of them in a manner approved by the
Commission. If a person has a medical condition which
makes it necessary to have a syringe at any location under
the jurisdiction of the Commission, that person may request
permission of the State Steward, judges and/or the
Commission in writing, furnish a letter from a licensed
physician explaining why it is necessary for the person to
possess a syringe, and must comply with any conditions and
restrictions set by the State Steward, judges and/or the
Commission.
8.3 Medications and Foreign Substances
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
418 PROPOSED REGULATIONS
Foreign substances shall mean all substances,
except those which exist naturally in the untreated horse at
normal physiological concentration, and shall include all
narcotics, stimulants, depressants or other drugs or
medications of any type. Except as specifically permitted by
these rules, no foreign substance shall be carried in the body
of the horse at the time of the running of the race. Upon a
finding of a violation of these medication and prohibited
substances rules, the State Steward or other designee of the
Commission shall consider the classification level of the
violation as listed at the time of the violation by the Uniform
Classification Guidelines of Foreign Substances as
promulgated by the Association of Racing Commissioners
International and shall consider all other relevant available
evidence including but not limited to: i) whether the
violation created a risk of injury to the horse or driver; ii)
whether the violation undermined or corrupted the integrity
of the sport of harness racing; iii) whether the violation
misled the wagering public and those desiring to claim the
horse as to the condition and ability of the horse; iv) whether
the violation permitted the trainer or licensee to alter the
performance of the horse or permitted the trainer or licensee
to gain an advantage over other horses entered in the race; v)
the amount of the purse involved in the race in which the
violation occurred. The State Steward may impose penalties
and disciplinary measures consistent with the
recommendations contained in subsection 8.3.2 of this
section.
8.3.1 Uniform Classification Guidelines
The following outline describes the types of
substances placed in each category. This list shall be
publicly posted in the offices of the Commission
Veterinarian and the racing secretary.
8.3.1.1 Class 1
Opiates, opium derivatives, synthetic
opiates, psychoactive drugs, amphetamines and U.S. Drug
Enforcement Agency (DEA) scheduled I and II drugs. Also
found in this class are drugs which are potent stimulants of
the nervous system. Drugs in this class have no generally
accepted medical use in the race horse and their
pharmacological potential for altering the performance of a
race is very high.
8.3.1.2 Class 2
Drugs in this category have a high
potential for affecting the outcome of a race. Most are not
generally accepted as therapeutic agents in the race horse.
Many are products intended to alter consciousness or the
psychic state of humans, and have no approved or indicated
use in the horse. Some, such as injectable local anesthetics,
have legitimate use in equine medicine, but should not be
found in a race horse. The following groups of drugs are in
this class:
8.3.1.2.1 Opiate partial agonist, or
agonist-antagonists;
8.3.1.2.2 Non-opiate psychotropic
drugs, which may have stimulant, depressant, analgesic or
neuroleptic effects;
8.3.1.2.3 Miscellaneous drugs which
might have a stimulant effect on the central nervous system
(CNS);
8.3.1.2.4 Drugs with prominent CNS
depressant action;
8.3.1.2.5 Antidepressant and
antipsychotic drugs, with or without prominent CNS
stimulatory or depressant effects;
8.3.1.2.6 Muscle blocking drugs
which have a direct neuromuscular blocking action;
8.3.1.2.7 Local anesthetics which have
a reasonable potential for use as nerve blocking agents
(except procaine); and
8.3.1.2.8 Snake venoms and other
biologic substances which may be used as nerve blocking
agents.
8.3.1.3 Class 3
Drugs in this class may or may not have an
accepted therapeutic use in the horse. Many are drugs that
affect the cardiovascular, pulmonary and autonomic nervous
systems. They all have the potential of affecting the
performance of a race horse. The following groups of drugs
are in this class:
8.3.1.3.1 Drugs affecting the
autonomic nervous system which do not have prominent
CNS effects, but which do have prominent cardiovascular or
respiratory system effects (bronchodilators are included in
this class);
8.3.1.3.2 A local anesthetic which has
nerve blocking potential but also has a high potential for
producing urine residue levels from a method of use not
related to the anesthetic effect of the drug (procaine);
8.3.1.3.3 Miscellaneous drugs with
mild sedative action, such as the sleep inducing
antihistamines;
8.3.1.3.4 Primary vasodilating/
hypotensive agents; and
8.3.1.3.5 Potent diuretics affecting
renal function and body fluid composition.
8.3.1.4 Class 4
This category is comprised primarily of
therapeutic medications routinely used in race horses. These
may influence performance, but generally have a more
limited ability to do so. Groups of drugs assigned to this
category include the following:
8.3.1.4.1 Non-opiate drugs which
have a mild central analgesic effect;
8.3.1.4.2 Drugs affecting the
autonomic nervous system which do not have prominent
CNS, cardiovascular or respiratory effects
8.3.1.4.2.1 Drugs used solely as
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 419
topical vasoconstrictors or decongestants
8.3.1.4.2.2 Drugs used as
gastrointestinal antispasmodics
8.3.1.4.2.3 Drugs used to void the
urinary bladder
8.3.1.4.2.4 Drugs with a major
effect on CNS vasculature or smooth muscle of visceral
organs.
8.3.1.4.3 Antihistamines which do not
have a significant CNS depressant effect (This does not
include H1 blocking agents, which are listed in Class 5);
8.3.1.4.4 Mineralocorticoid drugs;
8.3.1.4.5 Skeletal muscle relaxants;
8.3.1.4.6 Anti-inflammatory
drugs--those that may reduce pain as a consequence of their
anti-inflammatory actions, which include:
8.3.1.4.6.1 Non-Steroidal
Anti-Inflammatory Drugs (NSAIDs)--aspirin-like drugs;
8.3.1.4.6.2 Corticosteroids
(glucocorticoids); and
8.3.1.4.6.3 Miscellaneous
anti-inflammatory agents.
8.3.1.4.7 Anabolic and/or androgenic
steroids and other drugs;
8.3.1.4.8 Less potent diuretics;
8.3.1.4.9 Cardiac glycosides and
antiarrhythmics including:
8.3.1.4.9.1 Cardiac glycosides;
8.3.1.4.9.2 Antiarrhythmic agents
(exclusive of lidocaine, bretylium and propanolol); and
8.3.1.4.9.3 Miscellaneous
cardiotonic drugs.
8.3.1.4.10 Topical Anesthetics--agents
not available in injectable formulations;
8.3.1.4.11 Antidiarrheal agents; and
8.3.1.4.12 Miscellaneous drugs
including:
8.3.1.4.12.1 Expectorants with little
or no other pharmacologic action;
8.3.1.4.12.2 Stomachics; and
8.3.1.4.12.3 Mucolytic agents.
8.3.1.5 Class 5
Drugs in this category are therapeutic
medications for which concentration limits have been
established as well as certain miscellaneous agents.
Included specifically are agents which have very localized
action only, such as anti-ulcer drugs and certain antiallergic
drugs. The anticoagulant drugs are also included.
8.3.2 Penalty Recommendations
The following penalties and disciplinary
measures may be imposed for violations of these medication
and prohibited substances rules:
8.3.2.1 Class 1- in the absence of
extraordinary circumstances, a minimum license revocation
of eighteen months and a minimum fine of $5,000, and a
maximum fine up to the amount of the purse money for the
race in which the infraction occurred, forfeiture of the purse
money, and assessment for cost of the drug testing.
8.3.2.2 Class 2- in the absence of
extraordinary circumstances, a minimum license revocation
of nine months and a minimum fine of $3,000, and a
maximum fine of up to the amount of the purse money for
the race in which the violation occurred, forfeiture of the
purse money, and assessment for cost of the drug testing.
8.3.2.3 Class 3- in the absence of
extraordinary circumstances, a minimum license revocation
of ninety days, and a minimum fine of $3,000, and a
maximum fine of up to the amount of the purse money for
the race in which the violation occurred, forfeiture of the
purse money, and assessment for cost of the drug testing.
8.3.2.4 Class 4 - in the absence of
extraordinary circumstances, a minimum license revocation
of thirty days, and a minimum fine of $2,000, and a
maximum fine of up to the amount of the purse money for
the race in which the violation occurred, forfeiture of the
purse money, and assessment for the cost of the drug testing.
8.3.2.5 Class 5 - Zero to 15 days suspension
with a possible loss of purse and/or fine and assessment for
the cost of the drug testing.
8.3.2.6 In determining the appropriate penalty
with respect to a medication rule violation, the State Steward
or other designee of the Commission may use his discretion
in the application of the foregoing penalty recommendations,
and shall consult with the State Veterinarian, the
Commission veterinarian and/or the Commission chemist to
determine the seriousness of the laboratory finding or the
medication violation. Aggravating or mitigating
circumstances in any case should be considered and greater
or lesser penalties and/or disciplinary measures may be
imposed than those set forth above. Specifically, if the State
Steward or other designee of the Commission determine that
mitigating circumstances warrant imposition of a lesser
penalty than the recommendations suggest, he may impose a
lesser penalty. If the State Steward or other designee of the
Commission determines that aggravating circumstances
require imposition of a greater penalty, however, he may
only impose up to the maximum recommended penalty, and
must refer the case to the Commission for its review, with a
recommendation for specific action. Without limitation, the
presence of the following aggravating circumstances may
warrant imposition of greater penalties than those
recommended, up to and including a lifetime suspension:
8.3.2.6.1 Repeated violations of these
medication and prohibited substances rules by the same
trainer or with respect to the same horse;
8.3.2.6.2 Prior violations of similar
rules in other racing jurisdictions by the same trainer or with
respect to the same horse; or
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
420 PROPOSED REGULATIONS
8.3.2.6.3 Violations which endanger
the life or health of the horse.
8.3.2.6.4 Violations that mislead the
wagering public and those desiring to claim a horse as to the
condition and ability of the horse;
8.3.2.6.5 Violations that undermine or
corrupt the integrity of the sport of harness racing.
8.3.2.7 Any person whose license is
reinstated after a prior violation involving class 1 or class 2
drugs and who commits a subsequent violation within five
years of the prior violation, shall absent extraordinary
circumstances, be subject to a minimum revocation of
license for five years, and a minimum fine in the amount of
the purse money of the race in which the infraction occurred,
along with any other penalty just and reasonable under the
circumstances.
8.3.2.7.1 With respect to Class 1, 2
and 3 drugs detect in a urine sample but not in a blood
sample, and in addition to the foregoing factors, in
determining the length of a suspension and/or the amount of
a fine, or both, the State Steward or judges may take in
consideration, without limitation, whether the drug has any
equine therapeutic use, the time and method of
administration, if determined, whether more than one foreign
substance was detected in the sample, and any other
appropriate aggravating or mitigating factors.
8.3.2.8 Whenever a trainer is suspended more
than once within a two-year period for a violation of this
chapter regarding medication rules, any suspension imposed
on the trainer for any such subsequent violation also shall
apply to the horse involved in such violation. The State
Steward or judges may impose a shorter suspension on the
horse than on the trainer.
8.3.2.9 At the discretion of the State Steward
or other designee of the Commission, a horse as to which an
initial finding of a prohibited substance has bee made by the
Commission chemist may be prohibited from racing pending
a timely hearing; provided, however, that other horses
registered under the care of the trainer of such a horse may,
with the consent of the State Steward or other designee of the
Commission be released to the care of another trainer, and
may race.
8.3.3 Medication Restrictions
8.3.3.1 Drugs or medications in horses are
permissible, provided:
8.3.3.1.1 the drug or medication is
listed by the Association of Racing Commissioners
International's Drug Testing and Quality Assurance
Program; and
8.3.3.1.2 the maximum permissible
urine or blood concentration of the drug or medication does
not exceed the limit established in theses Rules or otherwise
approved and published by the Commission.
8.3.3.2 Except as otherwise provided by this
chapter, a person may not administer or cause to be
administered by any means to a horse a prohibited drug,
medication, chemical or other substance, including any
restricted medication pursuant to this chapter during the
24-hour period before post time for the race in which the
horse is entered. Such administration shall result in the
horse being scratched from the race and may result in
disciplinary actions being taken.
8.3.3.3 A finding by the official chemist of a
prohibited drug, chemical or other substance in a test
specimen of a horse is prima facie evidence that the
prohibited drug, chemical or other substance was
administered to the horse and, in the case of a post-race test,
was present in the horse's body while it was participating in a
race. Prohibited substances include:
8.3.3.3.1 drugs or medications for
which no acceptable levels have been established in these
Rules or otherwise approved and published by the
Commission.
8.3.3.3.2 therapeutic medications in
excess of acceptable limits established in these rules or
otherwise approved and published by the Commission.
8.3.3.3.3 Substances present in the
horse in excess of levels at which such substances could
occur naturally and such prohibited substances shall include
a total carbon dioxide level of 37 mmol/L or serum in a
submitted blood sample from a horse or 39 mmol/L if serum
from a horse which has been administered furosemide in
compliance with these rules, provided that a licensee has the
right, pursuant to such procedures as may be established
from time to time by the Commission, to attempt to prove
that a horse has a naturally high carbon dioxide level in
excess of the above-mentioned levels; and provided, further,
that an excess total carbon dioxide level shall be penalized in
accordance with the penalty recommendation applicable to a
Class 2 substance.
8.3.3.3.4 substances foreign to a horse
at levels that cause interference with testing procedures. The
detection of any such substance is a violation, regardless of
the classification or definition of the substance or its
properties under the Uniform Classification Guidelines for
Foreign Substances.
8.3.3.4 The tubing, dosing or jugging of any
horse for any reason within 24 hours prior to its scheduled
race is prohibited unless administered for medical
emergency purposes by a licensed veterinarian, in which
case the horse shall be scratched. The practice of
administration of any substance via a naso-gastric tube or
dose syringe into a horse's stomach within 24 hours prior to
its scheduled race is considered a violation of these rules and
subject to disciplinary action, which may include fine,
suspension and revocation or license.
8.3.4 Medical Labeling
8.3.4.1 No person on association grounds
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 421
where horses are lodged or kept, excluding licensed
veterinarians, shall have in or upon association grounds
which that person occupies or has the right to occupy, or in
that person's personal property or effects or vehicle in that
person's care, custody or control, a drug, medication,
chemical, foreign substance or other substance that is
prohibited in a horse on a race day unless the product is
labelled in accordance with this subsection.
8.3.4.2 Any drug or medication which is used
or kept on association grounds and which, by federal or
Delaware law, requires a prescription must have been validly
prescribed by a duly licensed veterinarian, and in
compliance with the applicable federal and state statutes.
All such allowable medications must have a prescription
label which is securely attached and clearly ascribed to show
the following:
8.3.4.2.1 the name of the product;
8.3.4.2.2 the name, address and
telephone number of the veterinarian prescribing or
dispensing the product;
8.3.4.2.3 the name of each patient
(horse) for whom the product is intended/prescribed;
8.3.4.2.4 the dose, dosage, duration of
treatment and expiration date of the prescribed/dispensed
product; and
8.3.4.2.5 the name of the person
(trainer) to whom the product was dispensed.
8.3.5 Furosemide (Lasix)
8.3.5.1 General
Furosemide (Lasix) may be administered
intravenously to a horse on the grounds of the association at
which it is entered to compete in a race. Except under the
instructions of the Commission Veterinarian for the purpose
of removing a horse from the Steward's List or to facilitate
the collection of a post-race urine sample, furosemide
(Lasix) shall be permitted only after the Commission
Veterinarian has placed the horse on the Bleeder List.
8.3.5.2 Method of Administration
Lasix shall be administered intravenously
by a licensed practicing veterinarian, unless the Commission
Veterinarian determines that a horse cannot receive an
intravenous administration of Lasix and gives permission for
an intramuscular administration; provided, however, that
once Lasix is administered intramuscularly, the horse shall
remain in a detention area under the supervision of a
Commission representative until it races.
8.3.5.3 Dosage
Lasix shall be administered to horses on
the Bleeder List only by a licensed practicing veterinarian,
who will administer not more than 500 milligrams nor less
than 100 milligrams, subject to the following conditions:
8.3.5.3.1 If less than 500 milligrams is
administered, and subsequent laboratory findings are
inconsistent with such dosage or with the time of
administration, then the trainer shall be subject to a fine or
other disciplinary action;
8.3.5.3.2 Not more than 750
milligrams may be administered if (1) the State veterinarian
grants permission for a dosage greater than 500 milligrams,
and (2) after the administration of such greater dosage, the
horse remains in a detention area under the supervision of a
Commission representative until it races; and
8.3.5.3.3 The dosage administered
may not vary by more than 250 milligrams from race to race
without the permission of the Commission Veterinarian.
8.3.5.4 Timing of Administration
Horses must be presented at the Lasix stall
in the paddock, and the Lasix administered, not more than
three hours and 30 minutes (3-1/2 hours) nor less than three
hours (three hours) prior to post time of their respective
races. Failure to meet this time frame will result in
scratching the horse, and the trainer may be fined.
8.3.5.5 Veterinary Charges
It is the responsibility of the owner or
trainer, prior to the administration of the medication, to pay
the licensed practicing veterinarian at the rate approved by
the Commission. No credit shall be given.
8.3.5.6 Restrictions
No one except a licensed practicing
veterinarian shall possess equipment or any substance for
injectable administration on the race track complex, and no
horse is to receive furosemide (Lasix) in oral form.
8.3.5.7 Post-Race Quantification
8.3.5.7.1 As indicated by post-race
quantification, a horse may not carry in its body at the time
of the running of the race more than 100 nanograms of Lasix
per milliliter of plasma in conjunction with a urine that has a
specific gravity of less than 1.01, unless the dosage of Lasix:
8.3.5.7.1.1 Was administered
intramuscularly as provided in 8.3.5.2; or
8.3.5.7.1.2 Exceeded 500
milligrams as provided in 8.3.5.3.2.
8.3.5.7.2 If post-race quantification
indicates that a horse carried in its body at the time of the
running of the race more than 100 nanograms of furosemide
per milliliter of plasma in conjunction with a urine that has a
specific gravity of 1.010 or lower, and provided that the
dosage of furosemide was not administered intramuscularly
as provided in 8.3.5.3.2 or exceeded 500 milligrams as
provided in 8.3.5.3.2, then a penalty shall be imposed as
follows:
8.3.5.7.2.1 If such overage is the
first violation of this rule within a 12-month period: Up to a
$250 fine and loss of purse.
8.3.5.7.2.2 If such overage is the
second violation of this rule within a 12-month period: Up to
a $1,000 fine and loss of purse.
8.3.5.7.2.3 If such overage is the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
422 PROPOSED REGULATIONS
third violation of this rule within a 12-month period: Up to a
$1,000 fine and up to a 15-day suspension and loss of purse.
8.3.5.7.2.4 If in the opinion of the
official chemist any such overage caused interference with
testing procedures, then for each such overage a penalty of
up to a $1,000 fine and a suspension of from 15 to 50 days
may be imposed.
8.3.5.8 Reports
8.3.5.8.1 The licensed practicing
veterinarian who administers Lasix to a horse scheduled to
race shall prepare a written certification indicating the time,
dosage and method of administration.
8.3.5.8.2 The written certification
shall be delivered to a Commission representative designated
by the State Steward at least one (1) hour before the horse is
scheduled to race.
8.3.5.8.3 The State Steward or judges
shall order a horse scratched if the written certification is not
received in a timely manner.
8.3.5.9 Bleeder List
8.3.5.9.1 The Commission
Veterinarian shall maintain a Bleeder List of all horses which
have demonstrated external evidence of exercise induced
pulmonary hemorrhage (EIPH) or the existence of
hemorrhage in the trachea post exercise upon:
8.3.5.9.1.1 visual examination
wherein blood is noted in one or both nostrils either:
8.3.5.9.1.1.1 during a race;
8.3.5.9.1.1.2 immediately postrace
or post-exercise on track; or
8.3.5.9.1.1.3 within one hour
post-race or post-exercise in paddock and/or stable area,
confirmed by endoscopic examination; or
8.3.5.9.1.2 endoscopic
examination, which may be requested by the owner or
trainer who feels his or her horse is a bleeder. Such
endoscopic examination must be done by a practicing
veterinarian, at the owner's or trainer's expense, and in the
presence of the Commission Veterinarian or Lasix
veterinarian. Such an examination shall take place within
one hour post-race or post-exercise; or
8.3.5.9.1.3 presentation to the
Commission Veterinarian, at least 48 hours prior to racing, of
a current Bleeder Certificate from an official veterinarian
from any other jurisdiction, which show the date, place and
method -- visual or endoscopy -- by which the horse was
determined to have bled, or which attests that the horse is a
known bleeder and receives bleeder medication in that
jurisdiction, provided that such jurisdiction's criteria for the
identification of bleeders are satisfactory to the Commission
Veterinarian.
8.3.5.9.2 The confirmation of a
bleeder horse must be certified in writing by the Commission
Veterinarian or the Lasix veterinarian and entered on the
Bleeder List. Copies of the certification shall be issued to the
owner of the horse or the owner's designee upon request. A
copy of the bleeder certificate shall be attached to the horse's
eligibility certificate.
8.3.5.9.3 Every confirmed bleeder,
regardless of age, shall be placed on the Bleeder List, and
Lasix must be administered to the horse in accordance with
these rules prior to every race, including qualifying races, in
which the horse starts.
8.3.5.9.4 A horse which bleeds based
on the criteria set forth in 8.3.5.9.1 above shall be restricted
from racing at any facility under the jurisdiction of the
Commission, as follows:
8.3.5.9.4.1 1st time - 10 days;
8.3.5.9.4.2 2nd time - 30 days,
provided that the horse must be added to or remain on the
Bleeder List, and must complete a satisfactory qualifying
race before resuming racing;
8.3.5.9.4.3 3rd time - 30 days, and
the horse shall be added to the Steward's List, to be removed
at the discretion of the CommissionVeterinarian following a
satisfactory qualifying race after the mandatory 30-day rest
period; and
8.3.5.9.4.4 4th time - barred for life.
8.3.5.9.5 An owner or trainer must
notify the Commission Veterinarian immediately of evidence
that a horse is bleeding following exercise or racing.
8.3.5.9.6 A horse may be removed
from the Bleeder List at the request of the owner or trainer, if
the horse completes a 10-day rest period following such
request, and then re-qualifies.
8.3.5.9.7 Any horse on the Bleeder
List which races in a jurisdiction where it is not eligible for
bleeder medication, whether such ineligibility is due to the
fact that it does not qualify for bleeder medication in that
jurisdiction or because bleeder medication is prohibited in
that jurisdiction, shall automatically remain on the Bleeder
List at the discretion of the owner or trainer, provided that
such decision by the owner or trainer must be declared at the
time of the first subsequent entry in Delaware, and the Lasix
symbol in the program shall appropriately reflect that the
horse did not receive Lasix its last time out. Such an election
by the owner or trainer shall not preclude the Commission
Veterinarian, State Steward or Presiding Judge from
requiring re-qualification whenever a horse on the Bleeder
List races in another jurisdiction without bleeder medication,
and the integrity of the Bleeder List may be questioned.
8.3.5.9.8 Any horse on the Bleeder
List which races without Lasix in any jurisdiction which
permits the use of Lasix shall automatically be removed
from the Bleeder List. In order to be restored to the Bleeder
List, the horse must demonstrate EIPH in accordance with
the criteria set forth in subdivision 1 above. If the horse does
demonstrate EIPH and is restored to the Bleeder List, the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 423
horse shall be suspended from racing in accordance with the
provisions of 8.3.6.4 above.
8.3.5.9.9 The State Steward or
Presiding Judge, in consultation with the State veterinarian,
will rule on any questions relating to the Bleeder List.
8.3.5.10 Medication Program Entries
It is the responsibility of the trainer at the
time of entry of a horse to provide the racing secretary with
the bleeder medication status of the horse on the entry blank,
and also to provide the Commission Veterinarian with a
bleeder certificate, if the horse previously raced out-of-state
on bleeder medication.
8.3.6 Phenylbutazone (Bute)
8.3.6.1 General
8.3.6.1.1 Phenylbutazone or
oxyphenbutazone may be administered to horses three years
of age and older in such dosage amount that the official test
sample shall contain not more than 2.0 micrograms per
milliliter of blood plasma. Phenylbutazone or
oxyphenbutazone is not permissible at any level in horses
two years of age and if phenylbutazone or oxyphenbutazone
is present in any post-race sample from a two year old horse,
said horse shall be disqualified, shall forfeit any purse
money, and the trainer shall be subject to penalties including
up to a $1,000 fine and up to a fifty day suspension.
8.3.6.1.2 If post-race quantification
indicates that a horse carried in its body at the time of the
running of the race more than 2.0 but not more than 2.6
micrograms per milliliter of blood plasma of phenylbutazone
or oxyphenbutazone, then warnings shall be issued to the
trainer.
8.3.6.1.3 If post-race quantification
indicates that a horse carried in its body at the time of the
running of the race more than 2.6 micrograms per milliliter
of blood plasma of phenylbutazone or oxyphenbutazone,
then a penalty shall be imposed as follows:
8.3.6.1.3.1 For an average between
2.6 and less than 5.0 micrograms per milliliter:
8.3.6.1.3.1.1 If such overage is
the first violation of this rule within a 12-month period: Up
to a $250 fine and loss of purse.
8.3.6.1.3.1.2 If such overage is
the second violation of this rule within a 12-month period:
Up to a $1,000 fine and loss of purse.
8.3.6.1.3.1.3 If such overage is
the third violation of this rule within a 12-month period: Up
to a $1,000 fine and up to a 15-day suspension and loss of
purse.
8.3.6.1.3.1.4 For an overage of
5.0 micrograms or more per milliliter: Up to a $1,000 fine
and up to a 5-day suspension and loss of purse.
8.3.6.1.4 If post-race quantification
indicates that a horse carried in its body at the time of the
running of the race any quantity of phenylbutazone or
oxyphenbutazone, and also carried in its body at the time of
the running of the race any quantity of any other nonsteroidal
anti-inflammatory drug, including but not limited
to naproxen, flunixin and meclofenamic acid, then such
presence of phenylbutazone or oxyphenbutazone, shall
constitute a violation of this rule and shall be subject to a
penalty of up to a $1,000 fine and up to a 50-day suspension
and loss of purse.
8.4 Testing
8.4.1 Reporting to the Test Barn
8.4.1.1 Horses shall be selected for postracing
testing according to the following protocol:
8.4.1.1.1 At least one horse in each
race, selected by the judges from among the horses finishing
in the first four positions in each race, shall be tested.
8.4.1.1.2 Horses selected for testing
shall be taken to the Test Barn or Test Stall to have a blood,
urine and/or other specimen sample taken at the direction of
the State veterinarian.
8.4.1.2 Random or extra testing, including
pre-race testing, may be required by the State Steward or
judges, or by the Commission, at any time on any horse on
association grounds.
8.4.1.3 Unless otherwise directed by the State
Steward, judges or the Commission Veterinarian, a horse that
is selected for testing must be taken directly to the Test Barn.
8.4.2 Sample Collection
8.4.2.1 Sample collection shall be done in
accordance with the RCI Drug Testing and Quality
Assurance Program External Chain of Custody Guidelines,
or other guidelines and instructions provided by the
Commission Veterinarian.
8.4.2.2 The Commission veterinarian shall
determine a minimum sample requirement for the primary
testing laboratory. A primary testing laboratory must be
approved by the Commission.
8.4.3 Procedure for Taking Specimens
8.4.3.1 Horses from which specimens are to
be drawn shall be taken to the detention area at the
prescribed time and remain there until released by the
Commission Veterinarian. Only the owner, trainer, groom,
or hot walker of horses to be tested shall be admitted to the
detention area without permission of the Commission
Veterinarian.
8.4.3.2 Stable equipment other than
equipment necessary for washing and cooling out a horse
shall be prohibited in the detention area.
8.4.3.2.1 Buckets and water shall be
furnished by the CommissionVeterinarian.
8.4.3.2.2 If a body brace is to be used,
it shall be supplied by the responsible trainer and
administered only with the permission and in the presence of
the Commission Veterinarian.
8.4.3.2.3 A licensed veterinarian shall
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
424 PROPOSED REGULATIONS
attend a horse in the detention area only in the presence of
the Commission Veterinarian.
8.4.3.3 One of the following persons shall be
present and witness the taking of the specimen from a horse
and so signify in writing:
8.4.3.3.1 The owner;
8.4.3.3.2 The responsible trainer who,
in the case of a claimed horse, shall be the person in whose
name the horse raced; or
8.4.3.3.3 A stable representative
designated by such owner or trainer.
8.4.3.4
8.4.3.4.1 All urine containers shall be
supplied by the Commission laboratory and shall be sealed
with the laboratory security seal which shall not be broken,
except in the presence of the witness as provided by
(subsection (3)) subsection 8.4.3.3 of this section.
8.4.3.4.2 Blood vacutainers will also
be supplied by the Commission laboratory in sealed
packages as received from the manufacturer.
8.4.3.5 Samples taken from a horse, by the
Commission Veterinarian or his assistant at the detention
barn, shall be collected and in double containers and
designated as the "primary" and "secondary" samples.
8.4.3.5.1 These samples shall be
sealed with tamper-proof tape and bear a portion of the
multiple part "identification tag" that has identical printed
numbers only. The other portion of the tag bearing the same
printed identification number shall be detached in the
presence of the witness.
8.4.3.5.2 The Commission
Veterinarian shall:
8.4.3.5.2.1 Identify the horse from
which the specimen was taken.
8.4.3.5.2.2 Document the race and
day, verified by the witness; and
8.4.3.5.2.3 Place the detached
portions of the identification tags in a sealed envelope for
delivery only to the stewards.
8.4.3.5.3 After both portions of
samples have been identified in accordance with this section,
the "primary" sample shall be delivered to the official
chemist designated by the Commission.
8.4.3.5.4 The "secondary" sample
shall remain in the custody of the Commission Veterinarian
at the detention area and urine samples shall be frozen and
blood samples refrigerated in a locked refrigerator/freezer.
8.4.3.5.5 The Commission
Veterinarian shall take every precaution to ensure that
neither the Commission chemist nor any member of the
laboratory staff shall know the identity of the horse from
which a specimen was taken prior to the completion of all
testing.
8.4.3.5.6 When the Commission
chemist has reported that the "primary" sample delivered
contains no prohibited drug, the "secondary" sample shall be
properly disposed.
8.4.3.5.7 If after a horse remains a
reasonable time in the detention area and a specimen can not
be taken from the horse, the Commission Veterinarian may
permit the horse to be returned to its barn and usual
surroundings for the taking of a specimen under the
supervision of the Commission Veterinarian.
8.4.3.5.8 If one hundred (100)
milliliters (ml.) or less of urine is obtained, it will not be
split, but will be considered the "primary" sample and will
be tested as other "primary" samples.
8.4.3.5.9 Two (2) blood samples shall
be collected in twenty (20) milliliters vacutainers, one for the
"primary" and one for the "secondary" sample.
8.4.3.5.10 In the event of an initial
finding of a prohibited substance or in violation of these
Rules and Regulations, the Commission chemist shall notify
the Commission, both orally and in writing, and an oral or
written notice shall be issued by the Commission to the
owner and trainer or other responsible person no more than
twenty-four (24) hours after the receipt of the initial finding,
unless extenuating circumstances require a longer period, in
which case the Commission shall provide notice as soon as
possible in order to allow for testing of the "secondary"
sample; provided, however, that with respect to a finding of
a prohibited level of total carbon dioxide in a blood sample,
there shall be no right to testing of the "secondary sample"
unless such finding initially is made at the racetrack on the
same day that the tested horse raced, and in every such
circumstance a "secondary sample" shall be transported to
the Commission laboratory on an anonymous basis for
confirmatory testing.
8.4.3.5.10.1 If testing of the
"secondary" sample is desired, the owner, trainer, or other
responsible person shall so notify the Commission in writing
within 48 hours after notification of the initial positive test or
within a reasonable period of time established by the
Commission after consultation with the Commission
chemist. The reasonable period is to be calculated to insure
the integrity of the sample and the preservation of the alleged
illegal substance.
8.4.3.5.10.2 Testing of the
"secondary" samples shall be performed at a referee
laboratory selected by representatives of the owner, trainer,
or other responsible person from a list of not less than two
(2) laboratories approved by the Commission.
8.4.3.5.11 The Commission shall bear
the responsibility of preparing and shipping the sample, and
the cost of preparation, shipping, and testing at the referee
laboratory shall be assumed by the person requesting the
testing, whether it be the owner, trainer, or other person
charged.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 425
8.4.3.5.11.1 A Commission representative
and the owner, trainer, or other responsible person
or a representative of the persons notified under these Rules
and Regulations may be present at the time of the opening,
repackaging, and testing of the "secondary" sample to ensure
its identity and that the testing is satisfactorily performed.
8.4.3.5.11.2 The referee laboratory
shall be informed of the initial findings of the Commission
chemist prior to making the test.
8.4.3.5.11.3 If the finding of the
referee laboratory is proven to be of sufficient reliability and
does not confirm the finding of the initial test performed by
the Commission chemist and in the absence of other
independent proof of the administration of a prohibited drug
of the horse in question, it shall be concluded that there is
insubstantial evidence upon which to charge anyone with a
violation.
8.4.3.5.12 The Commission
Veterinarian shall be responsible for safeguarding all
specimens while in his possession and shall cause the
specimens to be delivered only to the Commission chemist
as soon as possible after sealing, in a manner so as not to
reveal the identity of a horse from which the sample was
taken.
8.4.3.5.13 If an Act of God, power
failure, accident, strike or other action beyond the control of
the Commission occurs, the results of the primary official
test shall be accepted as prima facie evidence.
8.5 Trainer Responsibility
The purpose of this subsection is to identify
responsibilities of the trainer that pertain specifically to the
health and well-being of horses in his/her care.
8.5.1 The trainer is responsible for the condition
of horses entered in an official workout or race and is
responsible for the presence of any prohibited drug,
medication or other substance, including permitted
medication in excess of the maximum allowable level, in
such horses. A positive test for a prohibited drug, medication
or substance, including permitted medication in excess of the
maximum allowable level, as reported by a
Commission-approved laboratory, is prima facie evidence of
a violation of this rule. In the absence of substantial
evidence to the contrary, the trainer shall be responsible.
Whenever a trainer of a horse names a substitute trainer for
program purposes due to his or her inability to be in
attendance with the horse on the day of the race, or for any
other reason, both trainers shall be responsible for the
condition of the horse should the horse test positive;
provided further that, except as otherwise provided herein,
the trainer of record (programmed trainer) shall be any
individual who receives any compensation for training the
horse.
8.5.2 A trainer shall prevent the administration
of any drug or medication or other foreign substance that
may cause a violation of these rules.
8.5.3 A trainer whose horse has been claimed
remains responsible for any violation of rules regarding that
horse's participation in the race in which the horse is
claimed.
8.5.4 The trainer is responsible for:
8.5.4.1 maintaining the assigned stable area
in a clean, neat and sanitary condition at all times;
8.5.4.2 using the services of those
veterinarians licensed by the Commission to attend horses
that are on association grounds;
8.5.5 Additionally, with respect to horses in his/
her care or custody, the trainer is responsible for:
8.5.5.1 the proper identity, custody, care,
health, condition and safety of horses;
8.5.5.2 ensuring that at the time of arrival at
locations under the jurisdiction of the Commission a valid
health certificate and a valid negative Equine Infectious
Anemia (EIA) test certificate accompany each horse and
which, where applicable, shall be filed with the racing
secretary;
8.5.5.3 having each horse in his/her care that
is racing, or is stabled on association grounds, tested for
Equine Infectious Anemia (EIA) in accordance with state
law and for filing evidence of such negative test results with
the racing secretary;
8.5.5.4 using the services of those
veterinarians licensed by the Commission to attend horses
that are on association grounds;
8.5.5.5 immediately reporting the alteration
of the sex of a horse to the clerk of the course, the United
States Trotting Association and the racing secretary;
8.5.5.6 promptly reporting to the racing
secretary and the Commission Veterinarian when a posterior
digital neurectomy (heel nerving) has been performed and
ensuring that such fact is designated on its certificate of
registration;
8.5.5.7 promptly notifying the Commission
Veterinarian of any reportable disease and any unusual
incidence of a communicable illness in any horse in his/her
charge;
8.5.5.8 promptly reporting the serious injury
and/or death of any horse at locations under the jurisdiction
of the Commission to the State Stewards and judges, the
Commission Veterinarian, and the United States Trotting
Association;
8.5.5.9 maintaining a knowledge of the
medication record and status;
8.5.5.10 immediately reporting to the
State Steward, judges and the Commission Veterinarian
knowledge or reason to believe, that there has been any
administration of a prohibited medication, drug or substance;
8.5.5.11 ensuring the fitness to perform
creditably at the distance entered;
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
426 PROPOSED REGULATIONS
8.5.5.12 ensuring that every horse he/she
has entered to race is present at its assigned stall for a
pre-race soundness inspection as prescribed in this chapter;
8.5.5.13 ensuring proper bandages,
equipment and shoes;
8.5.5.14 presence in the paddock at least
one hour before post time or at a time otherwise appointed
before the race in which the horse is entered;
8.5.5.15 personally attending in the
paddock and supervising the harnessing thereof, unless
excused by the Paddock Judge;
8.5.5.16 attending the collection of a urine
or blood sample or delegating a licensed employee or the
owner to do so; and
8.5.5.17 immediately reporting to the
State Steward or other Commission designee, or to the State
Veterinarian or Commission Veterinarian if the State
Steward or other Commission designee is unavailable, the
death of any horse drawn in to start in a race in this
jurisdiction provided that the death occurred within 60 days
of the date of the draw.
8.6 Physical Inspection of Horses
8.6.1 Veterinarian's List
8.6.1.1 The Commission Veterinarian shall
maintain a list of all horses which are determined to be unfit
to compete in a race due to physical distress, unsoundness,
infirmity or medical condition.
8.6.1.2 A horse may be removed from the
Veterinarian's List when, in the opinion of the Commission
Veterinarian, the horse has satisfactorily recovered the
capability of competing in a race.
8.6.2 Postmortem Examination
8.6.2.1 The Commission may conduct a
postmortem examination of any horse that is injured in this
jurisdiction while in training or in competition and that
subsequently expires or is destroyed. In proceeding with a
postmortem examination the Commission or its designee
shall coordinate with the trainer and/or owner to determine
and address any insurance requirements.
8.6.2.2 The Commission may conduct a
postmortem examination of any horse that expires while
housed on association grounds or at recognized training
facilities within this jurisdiction. Trainers and owners shall
be required to comply with such action as a condition of
licensure.
8.6.2.3 The Commission may take possession
of the horse upon death for postmortem examination. The
Commission may submit blood, urine, other bodily fluid
specimens or other tissue specimens collected during a
postmortem examination for testing by the
Commission-selected laboratory or its designee. Upon
completion of the postmortem examination, the carcass may
be returned to the owner or disposed of at the owner's option.
8.6.2.4 The presence of a prohibited
substance in a horse, found by the official laboratory or its
designee in a bodily fluid specimen collected during the
postmortem examination of a horse, which breaks down
during a race constitutes a violation of these rules.
8.6.2.5 The cost of Commission-ordered
postmortem examinations, testing and disposal shall be
borne by the Commission.
See 1 DE Reg. 505 (11/01/97)
See 1 DE Reg. 923 (1/1/98)
See 3 DE Reg 1520 (5/1/00)
See 4 DE Reg. 6 (7/1/00)
See 4 DE Reg 336 (8/1/00)
See 5 DE Reg. 832 (10/1/01)
See 5 DE Reg. 1691 (3/1/02)
8.7 Prohibited Practices
8.7.1 The following conduct shall be prohibited
for all licensees:
8.7.1.1 The possession and/or use of a drug,
substance, or medication, specified below for which a
recognized analytical method has not been developed to
detect and confirm the administration of such substance
including but not limited to erythropoietin, darbepoietin, and
perfluorcarbon emulsions; or the use of which may endanger
the health and welfare of the horse or endanger the safety of
the rider; or the use of which may adversely affect the
integrity of racing.
8.7.1.2 The possession and/or use of a drug,
substance, or medication that has not been approved by the
United States Food and Drug Administration (FDA) for use
in the United States
10. Due Process and Disciplinary Action
10.2 Proceedings by State Steward or Judges
10.2.1 Rights of the Licensee
A person who is the subject of the disciplinary
hearing conducted by the State Steward or judges is entitled
to:
10.2.1.1 Proper notice of all charges;
10.2.1.2 Confront the evidence presented,
including:
10.2.1.2.1 the right to counsel at the
person's expense;
10.2.1.2.2 the right to examine all
evidence to be presented against him/her;
10.2.1.2.3 the right to present a defense;
10.2.1.2.4 the right to call witnesses;
and
10.2.1.2.5 the right to cross examine
witnesses.
10.2.1.3 Waive any of the above rights.
10.2.2 Complaints
10.2.2.1 A complaint must be in writing and
filed with the State Steward or judges within 30 days after
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 427
the action that is the subject of the complaint.
10.2.2.2 On their own motion or on receipt of a
complaint from an official or other person regarding the
actions of a licensee, the State Steward or judges may
conduct an inquiry and disciplinary hearing regarding a
licensee's actions.
10.2.3 Summary Suspension
10.2.3.1 If the State Steward or judges
determine that a licensee's actions, other than those of a
licensed association, constitute an immediate danger to the
public health, safety or welfare, the State Steward or judges
the Commission Investigator, may summarily suspend the
license pending a hearing.
10.2.3.2 A licensee whose license has been
summarily suspended is entitled to a hearing on the summary
suspension not later than the third racing day after the license
was summarily suspended. The licensee may waive his/her
right to a hearing on the summary suspension within the
three-day limit.
10.2.3.3 The State Steward or judges shall
conduct a hearing on a summary suspension in the same
manner as other disciplinary hearings. At a hearing on a
summary suspension, the sole issue is whether the licensee's
license should remain suspended pending a final disciplinary
hearing and ruling.
10.2.4 Notice
10.2.4.1 Except as provided by these rules
regarding summary suspensions, the State Steward or judges
shall provide written notice at least 24 hours before the
hearing to a person who is the subject of a disciplinary
hearing. The person may waive his/her right to 24-hour
notice by executing a written waiver.
10.2.4.2 Notice given under this section must
include:
10.2.4.2.1 a statement of the time, place
and nature of the hearing;
10.2.4.2.2 a reference to the particular
sections of the statutes or rules involved; and
10.2.4.2.3 a short, plain description of
the alleged conduct that has given rise to the disciplinary
hearing.
10.2.4.3 If possible, the State Steward or his
designee, or the judges or their designee, shall hand deliver
the written notice of the disciplinary hearing to the person
who is the subject of the hearing. If hand delivery is not
possible, the State Steward or judges shall mail the notice to
the person's last known address, as found in the
Commission's licensing files, by regular mail and by
certified mail, return receipt requested. If the disciplinary
hearing involves an alleged medication violation that could
result in the disqualification of a horse, the State Steward
shall provide written or oral notice of the hearing to the
owner, managing owner or lessee of the horse. Oral notice of
any hearing shall suffice upon attestation by the State
Steward that such notice was given the person who is the
subject of the hearing.
10.2.4.4 Nonappearance of a summoned party
after adequate notice shall be construed as a waiver of the
right to a hearing before the State Steward or judges. The
State Steward or judges may suspend the license of a person
who fails to appear at a disciplinary hearing after written or
oral notice of the hearing has been sent or delivered in
compliance with this subsection.
10.2.5 Continuances
10.2.5.1 Upon receipt of a notice, a person
may request a continuance of the hearing.
10.2.5.2 The State Steward or judges may
grant a continuance of any hearing for good cause shown.
10.2.5.3 The State Steward or judges may at
any time order a continuance on their own motion.
10.2.6 Evidence
10.2.6.1 Each witness at a disciplinary hearing
conducted by the State Steward or judges must be sworn by
the State Steward or presiding judge.
10.2.6.2 The State Steward or judges shall
allow a full presentation of evidence and are not bound by
the technical rules of evidence. However, the State Steward
or judges may disallow evidence that is irrelevant or unduly
repetitive of other evidence. The State Steward or judges
shall have the authority to determine, in their sole discretion,
the weight and credibility of any evidence and/or testimony.
The State Steward or judges may admit hearsay evidence if
the State Steward or judges determine the evidence is of a
type that is commonly relied on by reasonably prudent
people. The rules of privilege recognized by Delaware law
apply in hearings before the State Steward or judges.
10.2.6.3 The burden of proof is on the person
bringing the complaint to show, by a preponderance of the
evidence, that the licensee has violated or is responsible for a
violation of the Act or a Commission rule.
10.2.6.4 The State Steward or judges shall
make a tape recording of a disciplinary hearing. A copy or a
transcript of the recording may be made available at the
expense of the requesting person.
10.2.7 Ruling
10.2.7.1 The issues at a disciplinary hearing
shall be decided by the State Steward or by a majority vote
of the judges.
10.2.7.2 A ruling by the State Steward or
judges must be on a form prescribed by the Commission and
include:
10.2.7.2.1 the full name, social security
number, date of birth, last record address, license type and
license number of the person who is the subject of the
hearing;
10.2.7.2.2 a statement of the charges
against the person, including a reference to the specific
section of the Act or rules of the Commission that the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
428 PROPOSED REGULATIONS
licensee is found to have violated;
10.2.7.2.3 the date of the hearing and
the date the ruling was issued;
10.2.7.2.4 the penalty imposed;
10.2.7.2.5 any changes in the order of
finish or purse distribution;
10.2.7.2.6 other information required
by the Commission; and
10.2.7.2.7 the right to appeal to the
Commission.
10.2.7.3 A ruling must be signed by the State
Steward or by a majority of the judges, as the case may be.
10.2.7.4 Upon request, The State Steward or
his designee, or the judges or their designee, shall hand
deliver or mail a copy of the ruling to the person who is the
subject of the ruling. If hand delivery is not possible, the
State Steward or judges shall mail the ruling to the person's
last known address, as found in the Commission's licensing
files, by regular mail and by certified mail, return receipt
requested. A copy of the ruling shall be sent to the
Association of Racing Commissioners International, and if
the ruling includes the disqualification of a horse, the State
Steward or judges shall provide a copy of the ruling to the
horsemen's bookkeeper, breed registry(ies) and other
regulatory agencies, and shall notify the United States
Trotting Association, in the manner provided by this
subsection.
10.2.7.5 At the time the State Steward or
judges inform a person who is the subject of the proceeding
of the ruling, the State Steward or judges shall inform the
person of the person's right to appeal the ruling to the
Commission.
10.2.7.6 All fines imposed by the State
Steward or judges shall be paid to the Commission within
ten (10) days after the ruling is issued, unless otherwise
ordered.
10.2.8 Effect of Rulings
10.2.8.1 Rulings against a licensee apply to
another person if continued participation in an activity by the
other person would circumvent the intent of a ruling by
permitting the person to serve, in essence, as a substitute for
the ineligible licensee.
10.2.8.2 The transfer of a horse to avoid
application of a Commission rule or ruling is prohibited.
10.2.9 Appeals
10.2.9.1 A person aggrieved by a ruling of the
State Steward, judges, or the Administrator of the Breeder’s
Program may appeal to the Commission except as provided
in subdivision 10.2.9.6 of this subsection. A person who
fails to file an appeal by the deadline in the form required by
this section waives the right to appeal. Appeals of decisions
to deny or suspend registrations by the Administrator of the
Breeder’s Program may be appealed to the Delaware
Harness Racing Commission within thirty days of the action
by the Administrator of the Breeder’s Program, subject to the
same rules and procedures for handling appeals under these
Rules. For purposes of appeals from decisions of the
Administrator of the Breeder’s Program, the Commission
will take official notice of the rules and regulations enacted
by the Delaware Standardbred Breeders’ Fund.
10.2.9.2 An appeal under this section must be
filed with the State Steward not later than 48 hours after the
ruling. The appeal must be accompanied by a deposit in the
amount of $250, plus an amount to be determined from time
to time by the Commission for the cost of the court reporter’s
attendance. Unless the Commission determines the appeal to
be meritorious, either by reversing the decision of the State
Steward or judges or by reducing the penalty imposed, the
appeal deposit shall not be repaid to the appellant. In no
event shall the advance payment of the court reporters fee be
refunded.
10.2.9.3 An appeal must be in writing on a
form prescribed by the Commission. The appeal must
include:
10.2.9.3.1 the name, address, telephone
number and signature of the person making the appeal; and
10.2.9.3.2 a statement of the basis for
the appeal.
10.2.9.4 On notification by the Commission
that an appeal has been filed, the State Steward or judges
shall forward to the Commission the record of the
proceeding on which the appeal is based.
10.2.9.5 If a person against whom a fine has
been assessed timely files an appeal of the ruling that
assesses the fine, the person need not immediately pay the
fine in accordance with these rules.
10.2.9.6 A notice of appeal filed with the
Commission pursuant to these rules may be accompanied by
a request for a stay pending a final decision by the
Commission. In his discretion the State Steward may
approve such stay requests unless he determines that
granting the stay would be adverse to the best interests of
racing or inimical to the integrity of the sport. If the State
Steward denies a stay request, the appellant may submit a
written request to the Commission, in which case the
Chairman of the Commission in his discretion may grant or
deny the request.
10.3 Proceedings by the Commission
10.3.1 Party Designations
10.3.1.1 A person who is the subject of a
disciplinary hearing, who filed an appeal from a State
Steward's or judges' ruling, or who otherwise seeks relief
from the Commission, is a party to that proceeding.
10.3.1.2 A party to a proceeding has the right
to present a direct case, cross-examine each witness, submit
legal arguments and otherwise participate fully in the
proceeding.
10.3.1.3 A party summoned to appear at a
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 429
hearing must appear unless he/she is excused by the
Commission presiding officer. Parties may appear with
counsel licensed to practice law in Delaware, or, with the
Commission's approval, counsel licensed to practice law in
another jurisdiction provided that such out-of-state counsel
associates with a Delaware attorney.
10.3.1.4 A non-party to a proceeding who
wishes to appear in a contested case pending before the
Commission must prove that he/she has an effected interest
sufficient to create standing in the case. The burden of proof
is on the party asserting standing in such a contested case.
10.3.2 Notice
10.3.2.1 Not less than seven (7) days before
the date set for a hearing, the Commission shall serve written
or oral notice on each party of record to the proceeding. The
person may waive his/her right to said notice by executing a
written waiver. Oral notice shall suffice upon attestation by
the State Steward that he personally gave such notice to the
person who is the subject of the hearing.
10.3.2.2 If hand delivery or oral notice by the
State Steward is not possible, the Commission shall mail the
notice to the person's last known address, as found in the
Commission's licensing files, by regular mail and by
personal service or certified mail, return receipt requested.
10.3.2.3 A notice of the hearing must include:
10.3.2.3.1 a statement of time, place
and nature of the hearing;
10.3.2.3.2 a reference to the particular
sections of the statutes and rules involved; and
10.3.2.3.3 a short, plain statement of
the matters asserted.
10.3.2.4 If the Commission determines that a
material error has been made in a notice of hearing, or that a
material change has been made in the nature of a proceeding
after notice has been issued, the Commission shall issue a
revised notice.
10.3.2.5 A party to a proceeding may move to
postpone the proceeding. Unless waived by the Commission,
the motion must be in writing, set forth the specific grounds
on which it is sought and be filed with the Commission
before the date set for hearing. If the person presiding over
the proceeding grants the motion for postponement, the
Commission shall cause new notice to be issued.
10.3.2.6 After a hearing has begun, the
presiding officer may grant a continuance on oral or written
motion, without issuing new notice, by announcing the date,
time and place for reconvening the hearing before recessing
the hearing.
10.3.3 Subpoenas
10.3.3.1 A member of the Commission, the
Director of Poultry and Animal Health, the State Steward or
judges, the Commission Investigator the presiding officer of
a Commission proceeding or other person authorized to
perform duties under the Act may require by subpoena the
attendance of witnesses and the reproduction of books,
records, papers, correspondence and other documents.
10.3.3.2 The presiding officer of a
Commission proceeding or other person authorized by the
Commission may administer an oath or affirmation to a
witness appearing before the Commission or a person
authorized by the Commission.
10.3.3.3 Each party is responsible for proper
service of any subpoenas it requests and for the payment of
witness fees and expenses as provided by Delaware law.
10.3.3.4 On written request by a party, the
presiding officer may issue a subpoena addressed to a sheriff
or any constable to require the attendance of witnesses and
the production of books, records, papers or other objects as
may be necessary and proper for the purposes of a
proceeding. A motion for a subpoena to compel the
production of books, records, papers or other objects shall be
addressed to the appropriate person, shall be verified and
shall specify the books, records, papers or other objects
desired and the relevant and material facts to be proved by
them.
10.3.4 Conferences
10.3.4.1 On written notice, the presiding
officer may, on the officer's own motion or on the motion of
a party, direct each party to appear at a specified time and
place for a prehearing conference to formulate issues and
consider any of the following:
10.3.4.1.1 simplifying issues;
10.3.4.1.2 amending the pleadings;
10.3.4.1.3 making admissions of fact or
stipulations to avoid the unnecessary introduction of proof;
10.3.4.1.4 designating parties;
10.3.4.1.5 setting the order of
procedure at a hearing;
10.3.4.1.6 identifying and limiting the
number of witnesses;
10.3.4.1.7 resolving other matters that
may expedite or simplify the disposition of the controversy,
including settling issues in dispute; and
10.3.4.1.8 identifying provisions and
mandates of statute or rules relating to the issues.
10.3.4.2 The presiding officer shall record the
action taken at the prehearing conference unless the parties
enter into a written agreement as to the action. The presiding
officer may enter appropriate orders concerning prehearing
discovery, stipulations of uncontested matters, presentation
of evidence and scope of inquiry.
10.3.4.3 During a hearing, on written notice or
notice stated into the record, the presiding officer may direct
each party or the representative of each party to appear for a
conference to consider any matter that may expedite the
hearing and serve the interests of justice. The presiding
officer shall prepare a written statement regarding the action
taken at the conference and the statement must be signed by
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
430 PROPOSED REGULATIONS
each party and made a part of the record.
10.3.5 Reporters and Transcripts
10.3.5.1 If necessary, the Commission shall
engage a court reporter to make a stenographic record of a
hearing. The Commission may allocate the cost of the
reporter and transcript among the parties.
10.3.5.2 If a person requests a transcript of the
stenographic record, the Commission may assess the cost of
preparing the transcript to the person.
10.3.5.3 A party may challenge an error made
in transcribing a hearing by noting the error in writing and
suggesting a correction not later than 10 days after the date
the transcript is filed with the Commission. The party
claiming errors shall serve a copy of the suggested
corrections on each party of record, the court reporter and
the presiding officer. If proposed corrections are not
objected to before the tenth day after the date the corrections
were filed with the Commission, the presiding officer may
direct that the suggested corrections be made and the manner
of making them. If the parties disagree on the suggested
corrections, the presiding officer shall determine whether to
change the record.
10.3.6 Nature of Hearings
10.3.6.1 An appeal from a decision of the State
Steward or judges shall be de novo.
10.3.6.2 A hearing in a Commission
proceeding is open to the public, provided, however, that
witnesses may be sequestered.
10.3.6.3 Unless precluded by law or objected
to by a party, the Commission may allow informal
disposition of a proceeding without a hearing. Informal
disposition includes disposition by stipulation, agreed
settlement, consent order and default.
10.3.7 Presiding Officers
10.3.7.1 A member of the Commission, the
Director of Poultry and Animal Health or a Commission
appointee may serve as the presiding officer for a
Commission proceeding.
10.3.7.2 The presiding officer may:
10.3.7.2.1 issue subpoenas to compel
the attendance of witnesses and the production of papers and
documents;
10.3.7.2.2 administer oaths;
10.3.7.2.3 receive evidence;
10.3.7.2.4 rule on the admissibility of
evidence;
10.3.7.2.5 examine witnesses;
10.3.7.2.6 set reasonable times within
which a party may present evidence and within which a
witness may testify;
10.3.7.2.7 permit and limit oral
argument;
10.3.7.2.8 issue interim orders;
10.3.7.2.9 recess a hearing from day to
day and place to place;
10.3.7.2.10 request briefs before or after
the presiding officer files a report or proposal for decision;
10.3.7.2.11 propose findings of fact and
conclusions of law;
10.3.7.2.12 propose orders and
decisions; and
10.3.7.2.13 perform other duties
necessary to a fair and proper hearing.
10.3.7.3 A person serving as the presiding
officer of a proceeding must be a disinterested party to the
proceeding.
10.3.8 Order of Hearing
10.3.8.1 The presiding officer shall open the
hearing, make a concise statement of its scope and purposes
and announce that a record of the hearing is being made.
10.3.8.2 When a hearing has begun, a party or
a party's representative may make statements off the record
only as permitted by the presiding officer. If a discussion off
the record is pertinent, the presiding officer shall summarize
the discussion for the record.
10.3.8.3 Each appearance by a party, a party's
representative or a person who may testify must be entered
on the record.
10.3.8.4 The presiding officer shall receive
motions and afford each party of record an opportunity to
make an opening statement.
10.3.8.5 Except as otherwise provided by this
subsection, the party with the burden of proof is entitled to
open and close. The presiding officer shall designate who
may open and close in a hearing on a proceeding if the
proceeding was initiated by the Commission or if several
proceedings are heard on a consolidated record.
10.3.8.6 After opening statements, the party
with the burden of proof may proceed with the party's direct
case. Each party may cross examine each witness.
10.3.8.7 After the conclusion of the direct case
of the party having the burden of proof, each other party may
present their direct case and their witnesses will be subject to
cross examination.
10.3.8.8 The members of the Commission and/
or the presiding officer may examine any witnesses.
10.3.8.9 At the conclusion of all evidence and
cross examination, the presiding officer shall allow closing
statements.
10.3.8.10 Before issuing a decision, the
Commission or the presiding officer may call on a party for
further relevant and material evidence on a issue. The
Commission or the presiding officer may not consider the
evidence or allow it into the record without giving each party
an opportunity to inspect and rebut the evidence.
10.3.9 Behavior
10.3.9.1 Each party, witness, attorney or other
representative shall behave in all Commission proceedings
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 431
with dignity, courtesy and respect for the Commission, the
presiding officer and all other parties and participants.
10.3.9.2 An individual who violates this
section may be excluded from a hearing by the presiding
officer.
10.3.10 Evidence
10.3.10.1 All testimony must be given
under oath administered by the presiding officer. The
presiding officer may limit the number of witnesses and shall
exclude all irrelevant, immaterial or unduly repetitious
evidence.
10.3.10.2 The presiding officer is not bound
by the Rules of Evidence, but the rules of privilege
recognized by law in Delaware apply in Commission
proceedings.
10.3.10.3 A party may object to offered
evidence and the objection shall be noted in the record. A
party, at the time an objection is made or sought, shall make
known to the presiding officer the action the party desires.
Formal exceptions to rulings by the presiding officer during
a hearing are unnecessary.
10.3.10.4 When the presiding officer rules
to exclude evidence, the party offering the evidence may
make an offer of proof by dictating or submitting in writing
the substance of the proposed evidence, before the closing of
the hearing. The offer of proof preserves the point for
review. The presiding officer may ask a witness or offered
witness questions necessary to indicate that the witness
would testify as represented in the offer of proof. An alleged
error in sustaining an objection to questions asked on cross
examination is preserved without making an offer of proof.
10.3.10.5 The presiding officer may take
official notice of judicially cognizable facts and of facts
generally recognized within the area of the Commission's
specialized knowledge. The Commission shall notify each
party of record before the final decision in a proceeding of
each specific fact officially noticed, including any facts or
other data in staff memoranda. A party must be given an
opportunity to rebut the facts to be noticed.
10.3.10.6 The special skills and knowledge
of the Commission, the Commission staff, and the officials
of the Commission may be used in evaluating the evidence.
10.3.10.7 The presiding officer may receive
documentary evidence in the form of copies or excerpts if
the original is not readily available. On request, the
presiding officer shall allow a party to compare the copy
with the original. If many similar documents are offered in
evidence, the presiding officer may limit the documents
admitted to a number which are representative of the total
number, or may require that the relevant data be abstracted
from the documents and presented as an exhibit. If the
presiding officer requires an abstract, the presiding officer
shall allow each party or the party's representative to
examine the documents from which the abstracts are made.
10.3.10.8 The presiding officer may require
prepared testimony in a hearing if the presiding officer
determines that it will expedite the hearing without
substantially prejudicing the interests of a party. Prepared
testimony consists of any document that is intended to be
offered as evidence and adopted as sworn testimony by a
witness who prepared the document or supervised its
preparation. A person who intends to offer prepared
testimony at a hearing shall prefile the testimony with the
Commission on the date set by the presiding officer and shall
serve a copy of the prepared testimony on each party of
record. The presiding officer may authorize the late filing of
prepared testimony on a showing of extenuating
circumstances. The prepared testimony of a witness may be
incorporated into the record as if read or received as an
exhibit, on the witness being sworn and identifying the
writing as a true and accurate record of what the testimony
would be if the witness were to testify orally. The witness is
subject to clarifying questions and to cross examination and
the prepared testimony is subject to a motion to strike either
in whole or in part.
10.3.10.9 The party offering an exhibit
shall tender the original of the exhibit to the presiding officer
for identification. The party shall furnish one copy to the
presiding officer and one copy to each party of record. A
document received in evidence may not be withdrawn except
with the permission of the presiding officer. If an exhibit has
been offered, objected to and excluded and the party offering
the exhibit withdraws the offer, the presiding officer shall
return the exhibit to the party. If the party does not withdraw
the offered exhibit, the exhibit shall be numbered for
identification, endorsed by the presiding officer with the
ruling on the exhibit and included in the record to preserve
the exception.
10.3.10.10 The presiding officer may allow a
party to offer an exhibit in evidence after the close of the
hearing only on a showing of extenuating circumstances and
a certificate of service on each party of record.
10.3.11 Findings of Fact and Conclusions of Law
10.3.11.1 The presiding officer may direct
any party to draft and submit proposed findings of fact and
conclusions of law or a proposal for decision. The presiding
officer may limit the request for proposed findings to a
particular issue of fact.
10.3.11.2 Proposed findings of fact
submitted under this section must be supported by concise
and explicit statements of underlying facts developed from
the record with specific reference to where in the record the
facts appear.
10.3.11.3 Only if the presiding officer
requires the filing of proposed findings of fact or a proposal
for decision is the Commission required to rule on the
proposed findings of fact. If a party is permitted but not
required to submit proposed findings or a proposal for
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
432 PROPOSED REGULATIONS
decision, the Commission is not required to rule on the
party's proposed findings.
10.3.12 Dismissal
On its own motion or a motion by a party, the
presiding officer may dismiss a proceeding, with or without
prejudice, under conditions and for reasons that are just and
reasonable, including:
10.3.12.1 failure to timely pay all
required fees to the Commission;
10.3.12.2 unnecessary duplication of
proceedings;
10.3.12.3 withdrawal;
10.3.12.4 moot questions or obsolete
petitions; and
10.3.12.5 lack of jurisdiction.
10.3.13 Orders
10.3.13.1 Except as otherwise provided by
these rules, the Commission shall issue a final order not later
than thirty days after the conclusion of the hearing. A final
order of the Commission must be in writing and be signed by
a majority of the members of the Commission who voted in
favor of the action taken by the Commission. A final order
must comply with the requirements of §10128 of the
Administrative Procedures Act, and include a brief summary
of the evidence, findings of fact based upon the evidence,
conclusions of law, and other conclusions required by the
Act or by these Rules, and a concise statement of the
Commission's determination or action on the matter.
10.3.13.2 The Commission staff shall mail
or deliver a copy of the order to each party or the party's
representative.
10.3.13.3 A final order of the Commission
takes effect on the date the order is issued, unless otherwise
stated in the order.
10.3.13.4 If the Commission finds that an
imminent peril to the public health, safety or welfare
requires an immediate final order in a proceeding, the
Commission shall recite that finding in the order in addition
to reciting that the order is final from the date issued. An
order issued under this subsection is final and appealable
from the date issued and a motion for rehearing is not a
prerequisite to appeal.
10.3.14 Ex Parte Communications
10.3.14.1 No Commission member may
discuss the merits of a matter which is pending before the
Commission prior to a formal hearing, or between the
hearing and announcement of the Commission's final
decision.
10.3.14.2 The Administrative Procedure
Act, Title 29 of the Delaware Code, Section 10129,
pertaining to ex parte communications, is hereby
incorporated by reference.
10.3.15 Appeals
Within fifteen (15) days after service of a final
adjudication or order of the Commission, or the imposing of
a monetary fine, or of an order of the Commission refusing a
petition for rehearing or reconsideration, or of an order
following a rehearing or reconsideration, any party shall
have the right to appeal therefrom to the Superior Court of
the State of Delaware, in the manner provided by law and the
Rules of that Court.
10.4 Rulings in Other Jurisdictions
10.4.1 Reciprocity
The State Steward and judges shall honor
rulings from other pari-mutuel jurisdictions regarding
license suspensions, revocation or eligibility of horses.
10.4.2 Appeals of Reciprocal Rulings
10.4.2.1 Persons subject to rulings in other
jurisdictions shall have the right to request a hearing before
the Commission to show cause why such ruling should not
be enforced in Delaware.
10.4.2.2 Any request for such hearing must
clearly set forth in writing the reasons for the appeal.
See 1 DE Reg. 507 (11/01/97)
See 2 DE Reg. 1243 (01/01/99)
See 5 DE Reg. 1903 (4/1/02)
DEPARTMENT OF EDUCATION
14 DE Admin. Code 540
Statutory Authority: 14 Delaware Code,
Section 122(d) (14 Del.C. §122(d))
Educational Impact Analysis
540 Driver Education
A. Type Of Regulatory Action Required
Amendment to Existing Regulation
B. Synopsis Of Subject Matter Of The Regulation
The Secretary seeks the approval of the State Board of
Education to amend regulation 540 Driver Education. The
regulation has been renumbered for clarity by clustering like
issues together. Amendments have also been made to
renumbered sections 1.1, 1.2, 1.3, 4.0 and 5.0 for the purpose
of clarity. A new section 6.0 states that all high schools with
twenty-five or more students shall provide instruction in
driver education. Proposed amendments to regulation 540
Driver Education were previously published in the Delaware
Register of Regulations in August 2002, (Volume 6 page
133) and due to substantive changes in the amendments it is
being re-published.
C. Impact Criteria
1. Will the amended regulation help improve student
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 433
achievement as measured against state achievement
standards? The amended regulation only addresses
instruction in driver education.
2. Will the amended regulation help ensure that all
students receive an equitable education? The amended
regulation helps insure that all students receive driver
education instruction.
3. Will the amended regulation help to ensure that all
students’ health and safety are adequately protected? The
amended regulation addresses health and safety issues as
part of the driver education instruction.
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 driver
education instruction.
5. Will the amended regulation preserve the necessary
authority and flexibility of decision making at the local
board and school level? The amended regulation will
preserve the necessary authority and flexibility of decision
making at the local board and school level.
6. Will the amended regulation place unnecessary
reporting or administrative requirements or mandates upon
decision makers at the local board and school levels? The
amended regulation 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
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 regulation must
be amended in the process proscribed.
10. What is the cost to the state and to the local school
boards of compliance with the amended regulation? There is
no cost to cost to the state and to the local school boards for
compliance with the amended regulation.
540 Driver Education
1.0 Delaware residents are entitled to free driver education
one time only. Students who are not successful in their
initial driver education course may register in any of the
adult driver education programs for a fee.
1.1 2.0 The Individualized Education Program Team,
in consultation with the Driver Education teacher, may make
accommodations to the Driver Education program and offer
specialized instruction for special education students through
the students’ student’s Individual Education Program
(I.E.P.).
1.2 Nothing in this regulation shall alter a school’s
duties under Section 504 of the Rehabilitation Act of 1973 or
the Americans with Disabilities Act to students who are
qualified individuals with disabilities. Nothing in this
regulation shall prevent a school from providing driver
education to such students.
1.3 3.0 Delaware residents attending school out of
state as sophomores, students in excess of the September
30th unit allotment, students attending private and parochial
academies in state with sophomore enrollments of less than
twenty-five, home schooled students and any student
approved by the Secretary as an exceptional case are entitled
to attend summer driver education without charge. Districts
shall notify all nonpublic and public high schools in their
district by April May 1st annually as to the location of the
nearest summer driver education program. Summer Driver
Education shall be offered between June 1 - August 31 and
each request for free tuition must be approved by the
Secretary of Education through the Office of the Education
Associate for Driver Education, Safety and Physical
Education.
1.4 4.0 Adult Driver Education programs, when
offered, shall follow the same regulations established for the
high school and the summer programs. The adult programs
are available to any individual for a fee through a local
school district in each county. The costs cost per student for
adult driver education will be determined by the Department
of Education.
2.0 5.0 The driver education course shall include a
minimum of forty-four (44) class hours of instruction
consisting of thirty (30) class hours of classroom instruction,
seven (7) class hours of in-the-car behind-the-wheel
laboratory instruction and seven (7) hours of actual
observation in-the-car. The class hours must not be less than
forty-five (45) minutes each. For those schools with varying
class schedules the minimum classroom instruction must be
no less than one thousand three hundred fifty (1350) minutes
and behind-the-wheel laboratory instruction no less than
three hundred fifteen (315) minutes.
2.1 5.1 Driving simulators may be substituted for the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
434 PROPOSED REGULATIONS
required hours of behind-the-wheel laboratory instruction
but only up to three (3) hours of time at the ratio of four (4)
hours of driving simulation to one (1) hour of actual behindthe-
wheel laboratory instruction.
2.2 5.2 Off-the-street driving ranges or multiple
driving ranges that are off the street may be substituted for
actual behind-the-wheel laboratory instruction up to three (3)
hours time at the ratio of two (2) hours of range instruction
time to one (1) hour of actual behind-the-wheel laboratory
instruction time.
2.3 5.3 Driving simulation and off-the-street driving
range time shall not be taken from or cause a reduction of
classroom instruction time.
2.4 5.4 Driving simulation and off-the-street driving
range time shall not be substituted for more than one-half
(½) of the total required seven (7) hours of actual behindthe-
wheel laboratory instruction and only at the ratios
defined in the above items. This includes individually or in
any combination.
3.0 6.0 The Driver Education teachers shall use the
"Teachers’ Guide for Driver Education" developed by the
Department of Education for classroom instruction and
behind-the-wheel laboratory instruction time. Teachers
should include student activities requiring reading, writing
and research as part of the Driver Education curriculum.
4.0 7.0 Beginning with the 1998-99 school year, grades for
the Driver Education Program Final grades for the forty-four
hour driver education course shall be either pass or fail.
Districts Schools may grant one-fourth (1/4) credit for
successful completion of the minimum hours in both the
classroom and the behind-the-wheel laboratory experience.
The one fourth credit for driver education may be included
as part of the elective credits counted toward graduation.
4.1 7.1 Pass/Fail grades for publication in the
Department of Education "Report of Educational Statistics"
must be received by the Department of Education no later
than June 30th for Regular Driver Education Programs and
August 31st for Summer Driver Education Programs. Final
grades will be maintained by the Department for a sevenyear
period.
8.0 During the school day, automobiles purchased by a
district or leased from Fleet Services or leased directly from
a dealership using state funds allocated for Driver Education
shall be used solely for the instruction of students enrolled in
Driver Education.
5.0 Automobiles purchased, leased from Fleet Services or
leased directly from a dealership using state funds allocated
for driver education shall be used solely for the instruction of
students enrolled in Driver Education; except that a school
district or charter school may permit a driver education
teacher to drive such automobile to and from the teacher’s
place of residence when the school district or charter school
determines that it would be unsafe to store the automobile
overnight at the school; and further provided that in the case
of a private school driver education teacher, the Education
Associate for Driver Education and Physical Education at
the Department of Education may permit the teacher to drive
the automobile to and from school from the teacher’s place
of residence when it appears that it would be unsafe to store
the automobile overnight at the school.
6.0 All public and non-public high schools with enrollments
of twenty-five or more sophomore students shall offer driver
education as an integral part of the curriculum.
See 1 DE Reg. 964 (1/1/98)
Educational Impact Analysis
601 School/Police Relations
A. Type Of Regulatory Action Required
Amendment to Existing Regulation
B. Synopsis Of Subject Matter Of The Regulation
The Secretary seeks to amend regulation 601 School
Police Relations in order to include charter schools and
alternative schools in the requirements of the regulation and
to clarify the list of school crimes that must be reported to
the Department of Education, in addition to those required to
be reported by law, to reflect current conditions. Some
incidents of student misconduct have been removed from the
list and bomb threats, alcohol possession and use and
bullying have been added to the list. A definition of bullying
has been added in 5.0. The requirement in 2.0 for DOE
approved training was removed since the training is done
locally with technical assistance from DOE if requested.
C. Impact Criteria
1. Will the amended regulation help improve student
achievement as measured against state achievement
standards? The amended regulation does not directly
address student achievement. However, continued
coordination between school and police agencies is expected
to improve overall school climate, thereby leading to
improved student performance and increased equity and
fairness among students.
2. Will the amended regulation help ensure that all
students receive an equitable education? The amended
regulation does not directly address student achievement.
However, continued coordination between school and police
agencies is expected to improve overall school climate,
thereby leading to improved student performance and
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 435
increased equity and fairness among students.
3. Will the amended regulation help to ensure that all
students’ health and safety are adequately protected? The
amended regulation addresses processes and procedures that
contribute to student safety in the schools.
4. Will the amended regulation help to ensure that all
students’ legal rights are respected? The amended regulation
addresses processes and procedures that contribute to
ensuring that all students’ legal rights are respected.
5. Will the amended regulation preserve the necessary
authority and flexibility of decision making at the local
board and school level? The amended regulation will
preserve the necessary authority and flexibility of decision
making at the local board and school level.
6. Will the amended regulation place unnecessary
reporting or administrative requirements or mandates upon
decision makers at the local board and school levels? The
amended regulation will not place 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
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? There is no less
burdensome method for addressing the purpose of the
amended regulation.
10. What is the cost to the State and to the local school
boards of compliance with the amended regulation? There is
minimal additional cost.
601 School/Police Relations
1.0 All local school districts shall establish a policy on
school/police relations. Each school district shall develop a
Memorandum of Agreement (MOA) between the district
board of education and each police department which
provides police coverage to the district. Each district’s
MOA shall be in a form substantially similar to the Model
Memorandum of Agreement (MMO) Between Board(s) of
Education and Law Enforcement Agencies in the State of
Delaware as approved by the Secretary of the Department of
Education. Section 6 of the MMO must be included in each
district’s MOA verbatim. Districts shall submit a signed
copy of its current MOA and be submitted to the Department
of Education.
1.0 All local school districts, charter schools and alternative
schools or consortia shall establish a policy on school/police
relations. Each school district, charter school and alternative
school or consortium shall develop a Memorandum of
Agreement (MOA) with each police department which
provides services to it. Each MOA shall be in a form
substantially similar to a Model MOA as developed,
approved and from time to time revised by the Department
of Education.
2.0 Each school administrator involved in the student
disciplinary process shall complete DOE approved training
in school/police relations and in student disciplinary matters
in general and, thereafter, such additional training in those
areas as the Department of Education may from time to time
prescribe.
2.0 3.0 Each school district, charter school and alternative
school or consortium shall, at the time of hiring and at the
beginning of each school year thereafter, advise each school
employee (as that term is defined in 14 Dolce §4112) of his/
her duty to report school crimes and the penalty for failure to
so report.
3.0 4.0 The Superintendent of each school district and
program administrator for each charter
school and alternative school, or his/her designee, shall
report to the DOE Department of Education all school
crimes required to be reported pursuant to 14 Dolce §4112,
and any subsequent amendment thereto. Such reports shall
be made on the Student Conduct Report (SCR) form to be
provided by forms as designated by the Department of
Education and filed with the Department of Education within
the time prescribed by statute.
5.0 In addition to those school crimes required to be
reported pursuant to statute, the Superintendent of each
school district shall report to the Department of Education
the following incidents of misconduct.
4.0 In addition to those school crimes required to be
reported pursuant to statute, the Superintendent of each
school district and program administrator for each charter
school and alternative school or consortia shall report to the
Department of Education incidents of misconduct 4.1
through 4.7. Such reports shall be made on forms as
designated by the Department of Education and filed with
the Department of Education not later than five working
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
436 PROPOSED REGULATIONS
days following the incident of student misconduct.
5.1 Pornography, exhibitionism, peeping
5.2 Criminal mischief
5.3 Evidence of organized gambling offenses
5.4 Offenses involving school property
5.5 Felony theft offenses
5.6 Forgery offenses
5.7 Fraud offenses
5.8 Tampering with public records
5.9 Computer/recorded sounds
5.10 Disorderly conduct/fighting
5.11 Offensive touching (non-employee)
5.12 Terroristic threatening (non-employee)
4.1 Pornography, possession and production
4.2 Bomb threats
4.3 Criminal mischief (vandalism)
4.4 Tampering with public records
4.5 Alcohol, possession and use
4.6 Felony theft ($1,000 or more)
4.7 Bullying
5.0 For purposes of the reporting required pursuant to 4.7 of
this regulation, "Bullying" is defined as when one person, or
a group of persons, targets another person with repeated
direct or indirect negative actions over a period of time
which are harmful to the victim either emotionally or
physically. A negative action occurs when a person
knowingly inflicts, or attempts to inflict, physical or
emotional injury or discomfort upon another person.
6.0 Such reports shall be made on the SCR form to be
provided by the Department of Education and filed with the
Department of Education not later than five working days
following the incident of student misconduct.
See 1 DE Reg. 511 (11/1/97)
Educational Impact Analysis
707 Salary Continuation:operation Noble Eagle And
Enduring Freedom
A. Type Of Regulatory Action Required
New Regulation
B. Synopsis Of Subject Matter Of The Regulation
The secretary seeks approval of the new regulation 707
Salary Continuation: Operation Noble Eagle and Enduring
Freedom in order to comply with the 141st General
Assembly Senate Bill 272 and Senate Amendment 1 entitled
An Act to Amend Title14 and Title 29 Relating to Leave of
Absence for Military.Service. The purpose o this bill is to
assure that school district employees will continue to receive
state compensation (less military service compensation) for
time served on active duty in Operation Noble Eagle and
Enduring Freedom.
C. Impact Criteria
1. Will the regulation help improve student
achievement as measured against state achievement
standards? The new regulation addresses salary
compensation not achievement standards.
2. Will the regulation help ensure that all students
receive an equitable education? The new regulation
addresses salary compensation not equity issues.
3. Will the regulation help to ensure that all students’
health and safety are adequately protected? The new
regulation addresses salary compensation not health and
safety issues.
4. Will the regulation help to ensure that all students’
legal rights are respected? The new regulation addresses
salary compensation not students’ legal rights.
5. Will the regulation preserve the necessary authority
and flexibility of decision making at the local board and
school level? The new regulation will preserve the
necessary authority and flexibility of decision making at the
local board and school level.
6. Will the 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 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 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 regulation? The 141st General Assembly,
Senate Bill 272 requires the Department of Education to
make regulations on this issue.
10. What is the cost to the State and to the local school
boards of compliance with the regulation? There is no
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 437
additional cost to the State and to the local school boards for
compliance with the regulation?
707 Salary Continuation: Operation Noble Eagle and
Enduring Freedom
1.0 Principals, teachers and other employees of a school
district called to active military service in connection with
Operation Noble Eagle and/or Operation Enduring Freedom
shall be eligible for continuation of their state share of salary,
less any military compensation received during the initial
period of active duty.
2.0 Employees receiving continuation of their state share of
salary shall be placed either on a "Military Leave Without
Pay" if they are to receive their pay when they return from
active duty or on a "Military Leave With Pay"if they are to
receive their biweekly pay while on active duty. They will
not accumulate holidays, sick leave, or annual leave while in
a leave status. In accordance with state and federal statutes,
employees will be credited with state service for the amount
of time on military leave upon their return to active
employment.
3.0 The amount of salary continuation provided through this
regulation shall apply to the state share of salary only.
However, a local school district may elect to provide salary
continuation for the local district portion of the employee’s
salary.
3.1 The state share of compensation shall be limited to
the state share of the base salary as calculated from the
appropriate salary schedule, administrative supplements and
all other stipends as provided for in 14 Del.C. Chapter 13.
3.2 Military compensation shall include base salary,
basic allowance for quarters (BAQ), basic allowance for
subsistence (BAS), hazardous duty pay and all other
supplemental compensation. The military compensation
shall be multiplied by the ratio of state share of
compensation to total compensation in determining the state
portion of the salary continuation.
3.3 Salary continuation checks shall be subject to
applicable federal, state, and city of Wilmington taxes and
FICA, if the employee is in a FICA eligible position.
Pension contributions, if the employee is in a pension
eligible position, and garnishments will also be made from
the salary continuation checks. Other deductions from the
salary continuation checks will be made in accordance with
Department of Education guidelines.
4.0 Claims must be filed within 90 days of release from
active duty or by Tuesday November 12, 2002 whichever is
later.
4.1 Salary continuation shall be effective retroactive to
September 11, 2001.
4.2 The request for continuation of salary shall be
initiated by the employee. Employees must contact the
school district personnel office for a copy of the forms and
instructions for filing a claim.
4.3 Claims shall be processed in accordance with the
procedures and forms developed by the Department of
Education.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 107 (31 Del.C. §107)
PUBLIC NOTICE
Delaware Medicaid/Medical Assistance Programs
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, the Delaware Health and Social Services
(DHSS) / Division of Social Services / Medicaid/Medical
Assistance Program is proposing to amend the Title XIX
Medicaid State Plan to establish a client co-pay amount for
non-emergency medical transportation services.
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 October 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
Summary of Proposed Regulation - Non-Emergency
Transportation Co-Pay Policy
Non-emergency transportation is provided to all eligible
Medicaid clients under the Medicaid State Plan as an
"Administrative" activity and cost. Non-emergency
transportation is also provided to non-Medicaid clients
participating in the DSS Chronic Renal Disease Program.
Clients eligible for the Delaware Healthy Children Program
are not covered for non-emergency transportation services.
Non-emergency transportation services (NET) are provided
under an Administrative contract with a transportation
broker.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
438 PROPOSED REGULATIONS
Under the Transportation Broker contract, nonemergency
transportation is provided free-of-charge to all
eligible Medicaid and CRDP clients who use public bus
passes or paratransit services through the Delaware Transit
Corporation.
All other means of transportation require a standard copayment
of $1.00 per trip. A trip is defined as transportation
"to" or "from" a medical service. A round-trip would incur a
$2.00 co-payment on the part of the eligible client.
All eligible clients other than those excluded above, are
liable for the applicable co-pay amount. Non-payment of
this standard cost-sharing amount may result in denial of the
service at the Transportation Broker’s or Transportation
Provider’s discretion. Providers may voluntarily provide
transportation to client who cannot pay the co-pay amount,
however the State will not reimburse the Transportation
Broker or the Transportation Provider any co-payment
amounts for which the client is or would have been liable.
Further, the Transportation Broker or Transportation
Provider have complete discretion as to whether they will
pursue any unpaid co-pay amounts from clients who were
provided non-emergency transportation but failed to
reimburse the Transportation Provider the required co-pay
fee at the time of the service. The State will not pursue
unpaid co-pay amounts from clients.
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:
Revision: CMS-PM-85-14(BERC)
ATTACHMENT 4.18-A
SEPTEMBER 1985
Page 2
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:
Non-Emergency Transportation (NET) is provided as an
administrative activity under the State Plan. The State's
position is that as an administrative activity, NET co-pay
requirements are not subject to 42 CFR 447.53(b),
exclusions from cost-sharing.
The Transportation Broker or Transportation Provider
will, based on information available to them, make a
determination of the client's ability to pay the co-pay. Nonpayment
of this standard cost-sharing amount may result in
denial of the service at the Transportation Broker’s or
Transportation Provider’s discretion. Providers may
voluntarily provide transportation to client who cannot pay
the co-pay amount, however the State will not reimburse the
Transportation Broker or the Transportation Provider any copayment
amounts for which the client is or would have been
liable. Further, the Transportation Broker or Transportation
Provider have complete discretion as to whether they will
pursue any unpaid co-pay amounts from clients who were
provided non-emergency transportation but failed to
reimburse the Transportation Provider the required co-pay
fee at the time of the service. The State will not pursue
unpaid co-pay amounts from clients.
Revision: CMS-PM-85-14(BERC)
ATTACHMENT 4.18-A
SEPTEMBER 1985
Page 3
OMB NO.: 093-0193
STATE PLAN UNDER TITLE XIX OF THE SOCIAL
SECURITY ACT
STATE: DELAWARE
D. The procedures for implementing and enforcing the
Service
Type of Charge
Amount and
Basis for
Determination Deductible Coinsurance Copayment
Non-
Emergency
Medical
Transportation
-0- -0- $1.00 per oneway
trip
This co-pay is
effective
October 1, 2002
and is based on
the ranges
specified in 42
CFR 447.54 and
447.55.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 439
exclusions from cost sharing contained in 42 CFR 447.53 (b)
are described below:
The Transportation Broker or Transportation Provider
have been informed about: applicable service and amount;
and, prohibition of service denial if client is unable to meet
the co-pay amount.
E. Cumulative maximums on charges:
State policy does not provide maximums.
Cumulative maximums have been established as
described below:
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, the Delaware Health and Social Services
(DHSS) / Division of Social Services / Food Stamp Program
is proposing to implement policy changes to Section 9060 of
the Division of Social Services Manual. The purpose of this
regulatory action is to mandate the use of utility standards.
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 October 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
Summary of Proposed Change: DSSM 9060 - Income
Deductions
Authority:7 CFR 273.9 and Section 4104 of Public
Law 107-171
Purpose: Households with utility expenses will be
required to use the appropriate mandatory utility standard
regardless of the actual costs of their expenses. The intent is
to stop prorating the allowances when more than one family
shares expenses.
Reason: Mandating the use of utility standards will
reduce food stamp errors and reduce the number of
verifications currently needed. Eligible clients that have the
allowances currently prorated may get an increase in food
stamps.
9060 Income Deductions
F. Shelter Costs - Monthly shelter costs in excess of
50% of the household's income after all other deductions in
A, B, and C above have been allowed. The shelter deduction
must not exceed the maximum excess shelter deduction
limit. (Refer to the current October Cost-of-Living
Adjustment Administrative Notice for the maximum excess
shelter deduction.) This is applicable unless the household
contains a member who is age sixty (60) or over, or disabled
per DSSM 9013.1. Such households will receive an excess
shelter deduction for the monthly costs that exceeds 50% of
the household's monthly income after all other applicable
deductions.
Shelter costs will include only the following:
1) Continuing charges for the shelter occupied by
the household, including rent, mortgages, condo and
association fees, or other continuing charges leading to the
ownership of the shelter such as loan repayments for the
purchase of a mobile home, including interest on such
payments. A mortgage is defined as any loan, which uses
the house as collateral.
Households required to pay the "last month's rent"
along with the first month's rent before they can move into
the dwelling can claim both amounts in the month that the
household is billed.
For example, a client rents an apartment in January
and must pay January's and the next December's rent in
January. Both rental amounts can be used for January's food
stamp budget. A rent deduction would not be allowed in
December since it was paid in January.
Households required to pay a security deposit
before they move into a dwelling cannot claim the deposit as
a shelter cost.
For example, a client rents a home and must pay a
$450 security deposit and the first month's rent before she
moves in. The security deposit will be refunded when she
moves out if the home is in good condition. She cannot
claim the deposit as a shelter cost for food stamp purposes.
2) Property taxes, State and local assessments and
insurance on the structure itself, but no separate costs for
insuring furniture or personal belongings. If separate
insurance costs for furniture or personal belongings are not
identified, use the total.
3) The costs of:
• fuel for heating or air conditioning costs for
cooling;
• electricity or fuel used for purposes other than
heating or cooling;
• water;
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
440 PROPOSED REGULATIONS
• sewerage;
• well installation and maintenance;
• septic tank system installation and
maintenance;
• garbage and trash collection;
• all service fees for one telephone, including,
but not limited to basic service fees, subscriber line
charges, relay center surcharges, 911 fees, and
taxes; and
• fees charged by the utility provider for initial
installation of the utility.
One time deposits cannot be included.
4) There are two standard utility allowances.
The two annualized utility allowances available:
a. The limited utility allowance (LUA) is
available to households that do not pay for heat or air
conditioning cooling, but incur costs that include electricity
and fuel for purposes other than heating or cooling, water
sewerage, well and septic tank installation and maintenance,
telephone, and garbage or trash collection. To get the LUA,
the household must incur expenses for at least two utilities,
like phone and electric, phone and water, gas cooking and
non-heat or cooling electric, or water and trash collection. A
household living in a public housing unit or other rental
housing unit which has central utility meters and charges the
household only for excess heating or cooling costs can
receive the LUA.
b. The heating and cooling utility allowance
(HCSUA) is available to households with heating or air
conditioning costs separate from their rent or mortgage.
Other households eligible for the HCSUA include:
• Residents of private rental housing who are
billed on a monthly basis by their landlords for
actual usage as determined through individual
usage or who are charged a flat rate;
• Households receiving energy payments under
the Low Income Home Energy Assistance
(LIHEA);
• Households receiving direct or indirect energy
assistance payments, other than LIHEA, that is
excluded as income and who continue to incur any
out-of-pocket heating or cooling expenses during
any month in the certification or recertification
period.
Heating costs must be verified to use the HCSUA.
For cooling costs, you must verify the utility, like electricity,
that provides the air conditioning. Accept the household's
statement that they pay for cooling unless it is questionable.
Refer to the current October Cost-of-Living
Adjustment Administrative Notice for the standard utility
allowances.
Qualifying households not opting to itemize actual
utility costs will be assigned the appropriate standard utility
allowance.
If the household is billed separately for only
telephone, the household is not entitled to claim either
standard utility allowance.
The standard telephone allowance will be used (for
households billed only for a telephone regardless of their
actual cost). (Refer to the current October Cost-of-Living
Adjustment Administrative Notice for the telephone
allowance.)
If a household is billed only for one utility, not
heating/cooling or telephone, the household is allowed the
actual cost for that utility.
Prorating the SUA
When households live with and share utility expenses
with other individuals or households, whether they are
participating in the Food Stamp Program or not, the agency
will prorate the standard utility allowances based on the
number of households sharing the utility costs.
The following are examples of prorating the SUA:
Two (2) households share a residence. They both
contribute towards the utility costs. The food stamp
household pays $50 towards the costs each month. The food
stamp household is entitled to one-half of the SUA.
A food stamp household shares an apartment and
utilities with another individual. The food stamp household
pays two-thirds of the utility costs. The household is entitled
to one-half of the SUA.
Three (3) households share a residence and utility
expenses. The food stamp household pays a different amount
each month based on the amount of the costs. The food
stamp household is entitled to a one-third proration of the
SUA.
3. Mandatory Utility and Phone Allowances
A. Heating and Cooling Standard Utility
Allowance (HCSUA) – The HCSUA is mandatory for:
• households that incur heating or cooling costs
separate and apart from their rent or mortgage
payments;
• residents of private rental housing who are billed on
a monthly basis by their landlords for actual usage
as determined through individual usage or who are
charged a flat rate;
• households receiving energy payments under the
Low Income Home Energy Assistance (LIHEA);
and
• households receiving direct or indirect energy
assistance payments like HUD utility
reimbursements, other than LIHEA, that is
excluded as income and who continue to incur any
out-of-pocket heating or cooling expenses during
any month in the certification or recertification
period.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 441
Heating costs must be verified to use the HCSUA. For
cooling costs, you must verify the utility, like electricity, that
provides the air conditioning. Accept the household's
statement that they pay for cooling unless it is questionable.
B. Limited Utility Allowance (LUA) – The
LUA is mandatory for:
• households that incur costs for two nonheat or
noncooling utilities like electric, gas cooking,
water, sewerage, well and septic tank installation
and maintenance, telephone, and garbage or trash
collection; and
• households living in a public housing unit or other
rental housing unit which has central utility meters
and charges the household only for excess heating
or cooling costs.
C. One-utility Standard – The one-utility
standard is mandatory for households that incur only one
non-heat, non-cooling, or non-phone utility.
D. Telephone Allowance – The standard
telephone allowance will be used for households billed only
for a telephone regardless of their actual cost.
Refer to the current October Cost-of-Living
Adjustment Administrative Notice for the standard utility
and phone allowance amounts.
There is no proration of the utility or phone
allowances when more than one household shares living
quarters. This means when two or more household share
living costs each household may receive the full utility or
phone allowance.
5) The shelter costs of the home if not occupied
by the household because of employment or training away
from home, illness or abandonment caused by a natural
disaster or casualty loss. For costs of a home vacated by the
household to be included in the household's shelter costs, the
household must intend to return to the home; the current
occupants of the home, if any must not be claiming the
shelter costs for food stamp purposes; and the home must not
be leased or rented during the absence of the household.
A household that has both an occupied home and an
unoccupied home is only entitled to one standard utility
allowance.
6) Charges for the repair of the home which was
substantially damaged or destroyed due to a natural disaster
such as a fire or flood. Shelter costs will not include charges
for repair of the home that have been or will be reimbursed
by private or public relief agencies, insurance companies, or
from any other source. Repairs, other than those due to
natural disasters, do not count as a deduction, even when
tenants must pay for them or be evicted.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 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 implement policy changes to Section 9085 of
the Division of Social Services Manual. This regulatory
action is related to the six-month reporting requirements for
certified food stamp 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 and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by October 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
Summary of Proposed Change: DSSM 9085 - Reporting
Changes
Authority: Section 4104 of the Farm Security and
Rural Investment Act of 2002
Purpose: To have all households under the sixmonth
reporting requirements, with certain exceptions,
report only when their income increases above 130% of the
Federal Poverty Level.
Reason: This option will decrease client caused
errors from failing to report changes.
9085 Reporting Changes
[273.12]
Certified food stamp households are required to report
the following changes in circumstances:
Six-Month Reporting Requirements
The following rReporting requirements are for all
households with countable earned income and six-month
certification periods except those households where all
members are elderly or disabled without earned income,
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
442 PROPOSED REGULATIONS
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
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 reporting requirements above without countable
earned income:
• Changes in the sources of or in the amount of gross
unearned income of more than $25, except changes in
the public assistance grants. Since DSS has prior
knowledge of all changes in the public assistance grants,
action shall be taken on the DSS information. Changes
reported in person or by telephone are to be acted upon
in the same manner as those reported on the change
report form;
• 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 non-categorically
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.
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.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 107 (31 Del.C. §107)
PUBLIC NOTICE
Division of Social Services
Temporary Assistance for Needy Families
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 is proposing to renew Delaware's
eligibility status for the Temporary Assistance for Needy
Families (TANF) program provided for in the enactment of
the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA), (P.L. 104-193). The
entire plan and all attachments are available upon request via
mail or fax.
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 October 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
Renewal:
Delaware State Plan For TANF
This new State Plan is submitted to renew Delaware's
eligibility status for the Temporary Assistance for Needy
Families (TANF) program provided for in the enactment of
the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA), (P.L. 104-193).
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 443
Delaware has been operating its TANF program under
Section 1115 waivers from the Social Security Act, as
approved on December 12, 1995, and amended on
September 27, 1996. Delaware received approval to continue
its waiver program based on the Waiver Inconsistency
Certification submitted by the Governor on September 27,
1999. Complete information about the waivers we are
continuing is contained in the Waiver Inconsistency
Certification.
Five years have passed since the enactment of
PRWORA, and the current authorization of the TANF
program is scheduled to end on September 30, 2002, which
is coincidentally the last day as the Delaware waiver is
scheduled to terminate. With reauthorization legislation still
pending federal action, Delaware has prepared this State
Plan renewal with much unknown information. Enactment
of either the House or Senate Finance Committee
Reauthorization Bill would make many changes in TANF,
but Delaware cannot build such changes into this Plan
without knowing which of the many conflicting provisions
will prevail. In addition, one provision that Delaware has
reviewed with particular interest is the authority provided to
states by Section 711 of the Senate Finance Bill, to continue
to operate TANF using section 1115 waiver provisions.
Enactment of this proposal would permit Delaware to
continue to operate TANF using the Delaware provisions
that DHHS agreed were inconsistent with TANF based on
our 1999 Waiver Inconsistency Certification.
Delaware's TANF program has been extremely
successful. From January 1997, when our waiver was
implemented statewide, through December, 2001, we
achieved a caseload reduction of 46 percent. Although our
rate of caseload decline has flattened somewhat recently due
to the economic downturn, we are certain that this temporary
slow-down will be short-lived. Delaware's TANF program
requires immediate work from caretakers in time-limited
families; those who cannot secure unsubsidized employment
immediately are placed in a Work for Your Welfare
component.
Since the Senate Bill would permit our waivers to
continue, and Delaware is unable at this time to plan what
alternative provisions might be required by enactment of
reauthorization legislation, we have opted to continue
operating Delaware's TANF program using our current
waiver provisions. In making this decision, Delaware has
carefully considered any potential risks to our ability to be in
compliance with TANF rules, in the event that the waivers
are not extended: We have formulated contingency plans that
will ensure that the State remains in compliance with
whatever TANF requirements are enacted. Delaware's
contingency plans include the potential for temporary
movement of some families who are performing work
services that would not count as participation under current
TANF rules, into segregated or separate state programs using
maintenance of effort (MOE) funding.
Delaware plans to closely watch the progress of federal
TANF reauthorization and to submit any needed
Amendments to this State Plan as quickly as possible after
new legislative requirements become known.
Goals, Results And Public Involvement
Goals
The goal of Delaware's TANF Program is to provide a
welfare system based on a philosophy of mutual
responsibility. In working toward that goal, the State will
strive to place individuals in private or public sector
unsubsidized employment that enables them to enter and
maintain meaningful jobs and interrupts the
intergenerational welfare dependency cycle. To that end,
TANF creates positive incentives for families to become
employed, and expects families to accept responsibility to
become self-supporting.
Five key principles form the foundation ofTANF:
1. Work should pay more than welfare.
2. Welfare recipients must exercise personal
responsibility in exchange for benefits.
3. Welfare should be transitional, not a way of
life.
4. Both parents are responsible for supporting
their children; and
5. The formation and maintenance of two-parent
families should be encouraged, and teenage pregnancy and
unwed motherhood should be discouraged.
Involvement of Local Governments, the Public, and
Private Sector Organizations
Welfare Reform in Delaware has a long history of active
involvement and partnership between and among state and
local governments and the private sector. Over a multi-year
period, Delaware has engaged government, the public and
the private sector in dialog about the welfare system and
ways to change it.
Since its introduction in January of 1995, in the form of
a waiver request, all sectors have had the opportunity to
influence Delaware's welfare reform program in a series of
public meetings and forums.
A collaborative partnership among the Department of
Health and Social Services (DHSS), Department of Labor
(DOL), and the Delaware Economic Development Office
(DEDO) worked to develop Delaware's original TANF
program; and the Delaware Transit Corp (DTC) has joined
these components in planning any changes required.
From 1995 to the present, the TANF collaborative team
has involved other stakeholders in a number of ways.
Community partner involvement runs the gambit from
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
444 PROPOSED REGULATIONS
support letters for TANF-related grants, to participating in
the resultant project planning and implementation, to
membership on an initiative's advisory/oversight council.
Partnerships include the City of Wilmington's HOPE VI
subsidized housing project; the Delaware Ecumenical
Council on Children and Families' rural outreach project; the
Division of Vocational Rehabilitation's employment efforts
with people with disabilities; the National Corps/VISTA
welfare-to-work mentoring program; and the Division of
Substance Abuse and Mental Health's Youth Offender Reentry
initiative. Presentations on TANF are ongoing by
request to the various Section 8 and
Public Housing entities; to non-profits such as the First State
Community Action Agency and the Latin American
Community Center; and to local churches, healthcare
centers, childcare providers, schools and youth centers (e.g.,
Boys & Girls Club).
The Social Services Advisory Council, consisting of
educators, health professionals, religious leaders,
representatives of community-based organizations,
advocates, and government leaders, all appointed by the
Governor, continues to provide advice on improving the
delivery of Delaware's social programs. In addition, the
Division of Social Services has regularly conducted focus
groups with clients in all counties of the States, most
recently in 2000 and 2001.
The requirement for a 45-day public comment period
was accomplished by making the plan available for public
review and comment through the following means:
• The State Plan was published in the Delaware
Register on October 1, 2002;
• The State Plan was published on the Delaware web
site at http://www.state.de.us/dhss/dhss.htm on
September 15, 2002; and
• Stakeholder groups as represented by the Social
Services Advisory Council, the TANF Employer
Committee, and TANF program contractors were
provided with individual copies of the Plan.
Delaware is proud to say that the administration
addressed and continues to build on the themes the public
identified not only in TANF but in many other areas of
public policy that support low income families, including the
Administration’s economic development, education, and
family policies. A brief summary of where public policies
intersect with welfare system change include:
• easing transition from welfare to work by:
• passing through to TANF recipients a portion
of the child support collected
• enhancing child support collection strategies
and achieving record child support collections
• changing the way the welfare system budgets
income so that families go off assistance only after
achieving income at 75 percent of the federal
poverty level
• increasing Delaware's investment in child care
so that there is no subsidized child care waiting list
for eligible working families with income up to
200% of the federal poverty level
• increasing the income threshold below which
individuals are not required to file personal income
tax returns to $15,449 for married couples and
$9,399 for single individuals; increasing the
personal credit from $100 to $110; and reducing the
tax rate for all individuals, other than the top tax
bracket, by .4 percentage points
• increasing the State minimum wage to $6.15 an
hour as of September, 2000.
• ensuring access to health care for Delaware families
through:
• providing Medicaid coverage to uninsured
adults as well as all children in families with
income at or below 100 percent of the federal
poverty level
• providing medical coverage for uninsured
children in families with income up to 200% of the
federal poverty level, through the Delaware Healthy
Children Program (DHCP)
• providing transitional Medicaid for two years
for families with children who exit welfare, at
incomes up to 185% of poverty.
• improving education for children by:
• expanding access to the Early Childhood
Education Program (ECAP)
• providing extra instructional time for lowachieving
students
• operating the Parents as Teachers program
statewide
• operating the Mentoring for Students program
for students who need an adult role model
• implementing a comprehensive program to
ensure safe, disciplined schools
• raising academic standards and graduation
requirements and pushing for school choice and
charter schools
• recruiting, through the Delaware Economic
Development Office (DEDO), new companies and
maintaining existing employers with good jobs that
provide career opportunities
• strengthening Delaware's families by:
• helping many thousands of welfare recipients
go to work, and providing continuing supports to
working families
• initiating voluntary paternity establishment
• providing transportation support for job
seekers and new workers
• establishing more effective welfare to work
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 445
programs with a work first approach to employment
and training services, while providing opportunities
for educational advancement
• enabling families with both parents to receive
benefits and services
• participating with community-based
organizations and the faith community to support
targeted, fragile populations.
• discouraging teen pregnancy through the
Alliance on Adolescent Pregnancy Prevention
• extending home visits to all first time parents
following a child’s birth
• cracking down on domestic violence to protect
vulnerable women and children
• enforcing the Sexual Predator Act to protect
vulnerable youth and prevent teen pregnancy.
Results to be Measured and Methods for Measuring
Progress
Delaware has committed to evaluate its welfare system.
The State has a multi-year contract with Abt Associates to
evaluate TANF. We continued to measure:
• the number of individuals working;
• the number of individuals sanctioned;
• the caseload size; and
• the number of months of receipt of TANF.
Recent reports by the evaluator include:
• The ABC Evaluation - A Better Chance for
Welfare Recipients? What the Public Thinks, March, 1999;
• The ABC Evaluation - Enrollment of Families
in Delaware's A Better Chance Program: A Report on the
First Three Years, March, 1999
• The ABC Evaluation - Carrying and Using
the Stick: Financial Sanctions in Delaware's A Better
Chance Program, May, 1999.
• Will Welfare Reform Influence Marriage and
Fertility? Early Evidence from the ABC Demonstration,
June, 1999.
• The ABC Evaluation - Verifying School
Attendance of Welfare Recipients’ Children, June 2000
The ABC Evaluation – Impacts of Welfare Reform on Child
Maltreatment, August 2000
• A report, Turning the Corner -- ABC at 4
Years, November 2000
• The DABC Evaluation How Have They Fared?
Outcomes After Four Years for the Earliest DABC Clients,
August 2001
• The DABC Evaluation Institutional Aspects of
Welfare Reform in Delaware, August 2001
These reports can be located at
http:\\www.abtassoc.com/reports/welfare-download.html.
Note that at one time, Delaware's TANF program was
known as A Better Chance or ABC.
Delaware is also one of four states participating in a
Welfare Reform and Family Formation research project
designed to provide an increased understanding of how
changes in welfare policies have affected childbearing,
marriage, and other family structure factors. Abt Associates
is teaming with a University of California research team in
analyzing random assignment data collected in Delaware.
Ensuring Accountability
TANF is administered by the Division of Social
Services (DSS), State of Delaware Department of Health and
Social Services. While DHSS is the lead agency, program
administration is accomplished through a partnership of
DSS, Department of Labor (DOL), Delaware Economic
Development Office (DEDO), and the Delaware Transit
Corp (DTC).
Delaware completed a massive automation
enhancement effort, to incorporate new technology in a
complete redesign of DCIS. DCIS II is a large-scale, client/
server, interactive eligibility determination and benefit
issuance system. DCIS II automates: client registration,
application entry, eligibility determination, benefit
calculation, benefit issuance and work programs for more
than 100 variations of cash, Medicaid and food stamp
programs, administered by the Delaware Division of Social
Services. DCIS II provides automated program support and
supports the information needs at the state and local office
level. DCIS II also incorporates program changes required
by P.L. 104-193.
The most recent enhancements to DCIS II provide for
on-line real-time communications between DSS workers and
Employment Connection contractors. DSS now provides
automated referral of non-exempted individuals to
contractors, contractor staff are now able to send automated
alerts to DSS workers, and contractors and DSS workers are
able to share case notes about participants. In addition,
contractors now directly enter hours of work participation
into the system, facilitating the computation of grants for
Work for Your Welfare participants.
Delaware is participating in the income and eligibility
verification system (IEVS) required by section 1137 of the
Social Security Act.
In addition, the State operates a fraud control program
and will disqualify individuals found to have committed an
intentional program violation based on findings of
administrative disqualification hearings and findings of
prosecution or court actions. Delaware has adopted the
penalties for intentional program violations used by the Food
Stamp Program; 12 months for the first offense and 24
months for a second instance. An individual committing a
third offense is permanently disqualified.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
446 PROPOSED REGULATIONS
NEEDY FAMILIES
Definition of Needy Families
For program purposes, needy families are a child and or
child(ren) and caretaker relatives whose combined income
and financial resources are not equal to or higher than the
standards established by the State. The following sections
describe these standards and how they are applied to
applicants and recipients.
Income and Resource Rules for Determining Need
For purposes of determining need Delaware will
continue to utilize the already established income and
resource rules of the TANF program. The following specific
features of Delaware's TANF program shall continue to
apply:
• The equity value of a primary automobile up to
$4,650 is excluded in determining the household resources.
• The cash value of a life insurance policy will
be excluded.
• In addition to the current resource limit,
families will be allowed to establish Special Education and
Business Investment Accounts (SEBIA) of up to $5,000.00,
including interest.
• Families will contribute directly to their
SEBIAs.
• Funds in such accounts will not be
considered as a resource. Withdrawals from
such accounts must be for approved purposes,
as defined in TANF. If funds are withdrawn for
non-approved purposes, the money will be
counted as a resource in the month received.
Approved reasons for withdrawal of funds for
self-sufficiency needs include, but are not
limited to: dependent care expenses, security
deposit for an apartment or house, or vehicle
repair costs.
• Financial Assistance received from school grants,
scholarships, vocational rehabilitation payments, JTPA
payments, educational loans, and other loans that are
expected to be repaid will not be counted as income for
TANF program purposes. Also, other financial assistance
received that is intended for books, tuition, or other selfsufficiency
expenses will be excluded.
• Earnings of dependent children, regardless of
student status, will be disregarded in determining the
family’s eligibility and the amount of TANF benefits.
• A one-time bonus payment of $50.00 will be paid
from TANF funds to eligible teens who graduate from high
school by age 19. This bonus, which will be paid directly to
the high school graduate, will be disregarded as income.
Income Tests to Determine Eligibility
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.
• Comparing the family’s income to 185% of the
applicable standard of need is the gross income test. Both
applicants and recipients must pass this income test.
• The other income test compares a family’s income,
after applying certain disregards, to the applicable standard.
This is a net income test.
• For applicants, defined as families who have
not received assistance in at least one of the four
months immediately preceding the application, the
net income is compared to the payment standard.
• For recipients, defined as families who have
received assistance in at least one of the four
months preceding the application or are current
recipients, the net income is compared to the
standard of need.
• A family’s income must be less than the gross
and net income limits to be financially eligible for
TANF. Once eligibility is established, the grant
amount is determined.
• Gross income is the total of the earned and
unearned income.
• Wages and self-employment income are
examples of earned income.
• Social Security benefits, child support, and
stepparent income are examples of unearned
income. Stepparent income will be included if the
child’s natural parent lives in the home.
Exhibit 1 contains the calculation steps for TANF applicants.
Exhibit 1: Determining Applicant Eligibility for TANF
Benefits
Step 1) The gross income will be compared to 185% of
the applicable TANF standard of need. Assistance will be
denied if the income exceeds 185% of the applicable TANF
standard of need.
Step 2) the standard work deduction ($90.00) and child
care expenses will be subtracted from each wage earner’s
earnings. The applicant’s net earned income will be added to
unearned income to determine the net family income. The
net income will be compared to the payment standard.
Assistance will be denied if the income exceeds the payment
standard.
If the income is less than the payment standard;
Step 3) The standard work deduction ($90.00), child
care, and the 30 plus 1/3 disregard (if applicable) will be
subtracted from each earner’s earned income. This net
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 447
earned income will be added to the unearned income to
calculate the family’s net income. The net income will be
subtracted from the applicable standard of need to obtain the
deficit. The deficit will be multiplied by 50%; the number
calculated is the remainder. The grant is either the remainder
or the payment standard whichever is less.
Exhibit 2 provides the calculations forTANF recipients.
Exhibit 2: Determining Recipient Eligibility for TANF Benefits
Step 1) The gross income will be compared to 185% of
the applicable TANF standard of need. Assistance will be
denied if the income exceeds 185% of the applicable TANF
standard of need;
Step 2) The standard work deduction ($90.00), child
care, and the 30 plus 1/3 disregard (if applicable) will be
subtracted from each earner’s earned income. The net
earned income will be added to unearned income to calculate
the family’s net income. Assistance will be denied if the
income exceeds the standard of need.
If the income is less than the standard of need;
Step 3) The net income will be subtracted from the
applicable standard of need; the number calculated is the
deficit. The deficit will be multiplied by 50%; the number
calculated is the remainder. The grant is either the remainder
or the payment standard whichever is less.
The TANF standards apply to all benefits and services
provided to needy families except for Emergency
Assistance, discussed on page twelve (12) and Attachment
A; child care, described on pages three (3), twelve (12), and
twenty-four (24). Delaware has established separate need
standards for these programs.
Fill-the-Gap Budgeting
Fill the Gap budgeting will be used for recipient
families to determine continued eligibility and the amount of
TANF benefits, so that families can retain more of their
income. By having a standard of need which is greater than
the payment standard a "gap" is created. The difference
between the family’s income and the need standard is called
the deficit. The state pays a percentage of the deficit up to a
maximum benefit level or payment standard.
• Three standards will be used in financial eligibility
calculations: 185% of the standard of need, the need
standard and the payment standard. 185% of the standard of
need will be used in the gross income test.
• The standard of need used is 75% of the Federal
Poverty level. This includes allowances for food, clothes,
utilities, personal items, and household supplies.
Diversion Assistance Program
Delaware operates a Diversion Assistance program
intended to help a family through a financial problem that
jeopardizes employment and which, if not solved, could
result in the family needing regular ongoing assistance. The
Diversion Assistance payment will not exceed $1,500 or the
financial need resulting from the crisis, whichever is less.
Diversion Assistance, which is available to both applicant
and recipient families, is not a supplement to regular
assistance but is in place of it.
Eligibility requirements for Diversion Assistance are as
follows:
• the parent must be living with his/her natural or
adopted children;
• the family has not received a Diversion Assistance
payment in the past 12 months;
• the Diversion Assistance amount will alleviate the
crisis;
• the parent is currently employed but having a
problem which jeopardizes the employment or has been
promised a job but needs help in order to accept the job;
• the family’s income would qualify the family for
TANF as a recipient household. (When calculating
eligibility for Diversion Assistance the family is given the
$30 plus 1/3 disregard, if applicable and the family’s net
income is compared to the Standard of Need.);
• the family’s resources would qualify forTANF.
The Diversion Assistance payment may be used for
items and/or services such as but not limited to:
• transportation (such as vehicle repairs, tires, insurance,
driver’s license fee, gas);
• clothing such as uniforms or other specialized
clothing and footwear or other employment-related apparel;
• tools and equipment;
• medical expenses not covered by Medicaid (e.g.
eye glasses);
• union dues, special fees, licenses or certificates;
• up-front costs of employment such as agency fees
and testing fees;
• unpaid child care expenses which, if they remain
unpaid, preclude the provision of future child care;
• relocation expenses for verified employment in
another county or state. These expenses may include
moving equipment rental, gas, and lodging for the days of
the move and the first month’s rent, rental and utility deposit.
Diversion Assistance payments will be made to a third
party vendor, not the parent. When the parent receives
Diversion assistance (s)he agrees to forego TANF cash
assistance as follows:
• $0 through $500.99 for 1 month;
• $501 through $1,000.99 for 2 months;
• $1,001 through $1,500 for 3 months.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
448 PROPOSED REGULATIONS
The once a year limitation on Diversion Assistance and
the period of ineligibility can be eliminated when good cause
exists. Good cause exists when circumstances beyond the
client’s control make re-application for Diversion Assistance
for TANF necessary. Examples of good cause are the
employer lays off the parent or a serious illness forces the
parent to stop working.
The family is eligible for TANF related Medicaid in the
month in which the Diversion Assistance payment is made.
The family would remain eligible for Section 1931 Medicaid
(TANF related Medicaid) until the family’s income exceeds
the Standard of Need. If the family’s income exceeds the
standard of need because of increased earnings or loss of the
$30 plus 1/3 disregard and the parent is working, the family
may be eligible for Transitional Medicaid.
Diversion Assistance does not count as income in the
child care programs, and families receiving Diversion
Assistance may also be eligible to receive child care under
Delaware's working poor child care program if their income
does not exceed 200 percent of the federal poverty level.
Receipt of Diversion Assistance would not bar receipt of
Food Stamp benefits, and Food Stamp applications will be
actively solicited from individuals requesting diversion
assistance.
Diversion Assistance does not count against the time
limit on receipt of assistance.
The family will not have to assign child support to the
state. Child support received by the parent or the Division of
Child Support Enforcement (DCSE) will belong to the
family. DCSE will not use child support to offset or
reimburse the Diversion Assistance.
Diversion Assistance is not intended to replace TANF’s
Emergency Assistance Program or Supportive Services
payments, which will continue. The TANF Emergency
Assistance Program provides identical benefits that were
provided under Delaware's State Plan in effect on August 21,
1996. (See Attachment A) Rather, Diversion Assistance
expands the opportunities to access as well as the value of
services to support employment.
Eligibility For Assistance Under The Tanf Program
Conditions of Eligibility
If the income tests described above are met, a family
will be eligible to receive TANF assistance subject to the
following conditions.
Relationship/Living Arrangements
A child must be living in the home of any relative by
blood, marriage, or adoption who is within the fifth degree of
kinship to the dependent child or of the spouse of any person
named in the above group even though the marriage is
terminated by death or divorce.
The caretaker of a teen parent who is not a parent must
demonstrate valid circumstances why the teen is not living
with a parent and must agree to be a party to the Contract of
Mutual Responsibility and fulfill the same responsibilities
thereunder as a parent.
Fugitive Felons; Individuals Convicted of Drug Related
Felonies
Fugitive felons and parole violators are ineligible for
TANF assistance. In addition, as of August 22, 1996,
individuals convicted of drug related felonies are
permanently barred from the date of conviction.
Family Cap Provision
No additional cash benefits will be issued due to the
birth of a child, if the birth occurs more than ten (10)
calendar months after the date of application for benefits
under TANF.
The family cap will not apply:
• when the additional child was conceived as a
result of incest or sexual assault,
• to children who do not reside with their parents
• to children born prior to the period identified
above who return or enter the household
• to a child that was conceived in a month the
assistance unit (i.e. the entire family) was not receiving
TANF, but this does not apply in cases that close due to
being sanctioned.
The family cap will apply to children who are the
firstborn of minors included in aTANF grant, except that the
family cap does not apply to firstborn children of minors
where the child was born prior to March 1997, the date that
Delaware began its TANF program.
The additional child(ren) is included in the standard of
need for purposes of determining eligibility; and the income
and resources of the child, including child support, is
included in determining the family’s income and resources.
However, the child(ren) is not included in determining the
payment standard for the family.
• The additional child(ren) is considered a recipient
for all other purposes, including categorical Medicaid
coverage, TANF child care, and Food Stamp benefits.
• Child support received for capped children is
passed directly through to the family.
Denial of Benefits to Babies Born and Residing with
Unmarried Teen Parents.
Cash assistance is not provided to babies born on and
after January 1, 1999 to unmarried minor teen parents. This
applies to both applicants and recipients. For all other
purposes, these babies will be considered TANF recipients.
They may also be eligible to receive Food Stamps, Medicaid
and child care as well as vouchers for the baby’s needs. This
provision applies as long as the teen parent resides in the
home with the baby, is unmarried or less than eighteen (18)
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 449
years of age.
Denial of Benefits for Fraudulent Misrepresentation to
Obtain Assistance in Two States
Any individual who misrepresents residence to receive
TANF, Medicaid, or Food Stamp benefits in two states shall
be subject to a ten-year bar if convicted in a state or federal
court.
Treatment of Eligible Non-Citizens
Qualified non-citizens who enter the United States
before August 22, 1996 shall be eligible to receive the same
benefits and services and shall be subject to the same
conditions and requirements as all other applicants and
recipients.
Qualified aliens entering the United States on or after
August 22, 1996, who are exempt from benefit restrictions as
specified in Federal law, are eligible to receive the same
benefits and services and shall be subject to the same
conditions and requirements as all other applicants and
recipients.
Qualified non-citizens who enter the United States on or
after August 22, 1996 are, after five years, eligible to receive
the same benefits and services and shall be subject to the
same conditions and requirements as all other applicants and
recipients.
Program Type
Depending on circumstances, families are placed in
either the Time-Limited TANF program or the Non Timelimited
TANF program.
Delaware's Time-Limited TANF Program has a work
first approach. Participants are expected to meet immediate
work requirements in order to receive benefits.
Effective October 1, 1998, Delaware began funding its
two- parent program with state only funds. The eligibility
requirements, services and benefits for this state funded twoparent
program are the same as the single parent Time-
Limited program
Time-limits for Delaware's Time-Limited TANF
Program and the interactions between time-limits and work
requirements are described in the sections entitled, Work:
Time Limits and Work, and TANF Benefits to Needy
Families: Time Limits.
Families with the following status will receive benefits
in the Non Time-limited program:
• Families that the agency has determined are
unemployable, either because a parent is too physically or
mentally disabled to work in an unsubsidized work setting or
because the parent is needed in the home to care for a child
or another adult disabled to that extent;
• Families headed by a non-needy, non-parent
caretaker;
• Families headed by a non-eligible non-citizen
parent who is not eligible to receive TANF benefits.
• Families where the agency has determined that
the adult caretaker is temporarily unemployable, and
• Families in which the adult files a claim or has
a claim being adjudicated for SSI or disability insurance
under OASDI. In this case, the family must sign an
agreement to repay cash benefits received under the Non
Time-limited TANF program from the proceeds of the first
SSI/DI check received. The amount repaid will not exceed
the amount of the retroactive SSI/DI benefit.
Contract of Mutual Responsibility requirements and
sanctions for noncompliance apply to families in the Non
Time-limited TANF program.
Contract of Mutual Responsibility
The caretaker of children in the TANF program enters
into a Contract of Mutual Responsibility with the Division of
Social Services (DSS) of the Department of Health and
Social Services (DHSS). Applicants and recipients have a
face-to-face interview. During this interview, the DSS
worker explains to the recipient the Contract of Mutual
Responsibility (CMR) and those elements specific to the
client.
The Contract lists the responsibilities of the family and
the supports the State will provide. The family’s
responsibilities include, but are not limited to: employmentrelated
activities, school attendance and immunization
requirements for children, family planning, parenting
education classes, and substance abuse treatment
requirements. The State provides supports to families
including but not limited to: employment-related activities,
training activities, child care, Medicaid, and other services
identified during the development of the Contract of Mutual
Responsibility.
The Contract is designed to be individualized to the
specific needs and situation of each family. Therefore, the
exact requirements within the Contract may vary from
family to family. This document can be revised as the needs
and the situation of the family evolve.
Services related to these CMR requirements will be
available to the participant. If the services specified in the
CMR are not reasonably available to the individual, the
participant will not be sanctioned for failure to comply and
the Contract will be modified to reflect that the service is
currently unavailable.
It is mandatory that all caretakers enter into a Contract
of Mutual Responsibility. Contracts are completed for
families in the Time Limited TANF Program and the Non
Time-limited TANF program as well as for teen parents.
Both caretakers in an assistance unit and non-needy
caretaker payees are required to develop and comply with
CMRs. Other family members within the assistance unit
may be required to comply with provisions of the Contract,
and are subject to sanction for non-compliance.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
450 PROPOSED REGULATIONS
If the caretaker is a non-needy caretaker relative, the
individual would not be required to participate in
employment-related activities but will be required to
participate in other Contract activities.
If a caretaker objects to certain aspects of the Contract,
the caretaker needs to present these objections up front, at
the time of the initial Contract. If good cause can be
demonstrated, the Contract can be amended to rectify the
objections.
When staff has reason to believe that the family needs
other services to become employed or to increase work hours
and wages, these services will be identified and specified in
the Contract of Mutual responsibility.
The fiscal sanction for not cooperating, without good
cause, in development of the Contract will be an initial
$50.00 reduction in benefits. This reduction will increase
each month by $50.00, either until there is compliance or the
case is closed. The sanction will end with demonstrated
compliance.
Individuals from Another State
All families meeting the status eligibility requirements
set forth above shall be eligible for TANF benefits using
Delaware rules, regardless of how long they have been
residents of the State.
Statewideness
All definitions and determinations of need shall be
applied on a statewide basis.
Protection of Privacy of Assisted Families
31 Delaware Code, Chapter 11, Section 1101 provides
that public assistance information and records may be used
only for purposes directly connected with the administration
of public assistance programs. Thus, all information
gathered regarding individuals for public assistance purposes
is considered confidential and will be safeguarded by DSS.
By safeguarding public assistance information, DSS protects
its clients from being identified as a special group based on
financial needs and protects their right to privacy.
General information regarding expenditures, numbers of
clients served, and other statistical information is a matter of
public record and may be made available to any interested
party. Other than the exceptions noted below, DSS will not
release any information regarding a particular individual
without the individual’s written consent.
• DSS Financial Services Regional Operations
Managers have the authority to disclose the address of a
recipient to a Federal, State or local law enforcement officer
at the officer’s request if the officer furnishes the agency
with the name of the recipient and notifies the agency that
the recipient:
• is fleeing to avoid prosecution; or
• is a fleeing felon (or in the case of New Jersey
is fleeing from conviction of a high misdemeanor);
or
• is violating a condition of probation or parole;
or;
• has information that is necessary for the officer
to conduct his or her official duties; and
• the location or apprehension of the recipient is
within such official duties.
• If a law enforcement officer requests
information that does not meet the guidelines indicated
above, a subpoena from a court of law is required before the
information can be released.
• DSS is required to report to the Division of Family
Services in situations where it believes a home is unsuitable
because of neglect, abuse or exploitation of a child.
• A Court Appointed Special Advocate (CASA)
is given permission to inspect and/or copy any
records relating to the child and his or her family
guardian without their consent. The CASA has the
authority to interview all parties having significant
information relating to the child. The CASA must
also be notified of any staffing, investigations or
proceedings regarding the child, so that they may
participate and represent the child.
• If information is released under the procedures
applying to CASA, pertinent details of the reasons
for the release shall be documented and written
notification of this release shall be sent to the last
known address of the individual to whom the record
refers.
• DSS has the authority to disclose information
concerning applicants and recipients provided it pertains to:
an investigation, prosecution, or criminal or civil proceeding
conducted in connection with public assistance programs.
the administration of any other Federal or federally assisted
program which provides assistance, in cash or in kind, or
services, directly to individuals on the basis of need. The
agency must assure DSS that such information will remain
confidential and will be used only to pursue services for the
individual. Other means tested programs include the
Supplemental Security Income Program, School Lunch and
Breakfast Program, the Energy Assistance Program, and the
Low Income Housing Program.
• Other agencies (such as Family and Children
Services of Delaware, Inc. Catholic Social Services, Legal
Aid, etc.) must provide written permission from the recipient
before public assistance information may be released.
• Other governmental agencies may obtain lists of
recipients from DSS if the information will be used to
perform services for DSS, and the agency can assure DSS
that the lists will remain confidential.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 451
Appeals Process
DSS will provide timely and adequate notice for actions
taken which affect eligibility or benefit level. Adequate
notice means a written notice that includes a statement of
what action the agency intends to take, the reasons for the
intended agency action, the specific regulations supporting
such action, explanation of the individual’s right to request a
fair hearing, and the circumstances under which assistance
may be continued if a hearing is requested.
Timely notice means a notice which is mailed no later
than 10 days before the date of action (i.e. 10 days before the
intended change would be effective). When DSS learns of
facts indicating that assistance should be discontinued,
suspended, terminated, or reduced because of the probable
fraud of the recipient, and, where possible, such facts have
been verified through secondary sources, notice of a grant
adjustment is timely if mailed at least five days before the
action would become effective.
An opportunity for a hearing will be granted to any
applicant who requests a hearing because his/her claim for
assistance is denied or is not acted upon with reasonable
promptness and to any applicant or recipient who is
aggrieved by any Agency action.
To be considered by the Agency, 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. The
freedom to make such a request will not be limited or
interfered with in any way and the Division will assist the
appellant in submitting and processing his/her request. 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.
Work
Goals For Work
Delaware's TANF program is based on the belief that
assistance provided is transitional and should not become a
way of life. The State maintains that the way for persons to
avoid dependency on welfare is for them to find and
maintain employment. Thus the primary goal of TANF is to
help recipients find private sector work and to help them
keep such work by providing them with necessary supports.
To assist families in attaining and maintaining
employment, the State will engage the efforts of the
Departments of Health and Social Services, Labor and
Economic Development and Delaware's private sector to
provide job readiness and placement opportunities, health
and child care, the EITC, and family services. In turn, TANF
recipients who have the capacity to work will be required to
accept work, to keep their children in school, to cooperate
with child support, to bear the costs of additional children
they conceive while on welfare, and to leave the welfare
rolls after a defined time period.
State Agencies Involved
Delaware Health & Social Services, Labor, and
Economic Development have a unique partnership. All
three agencies are responsible for moving welfare clients to
work. These three agencies have collaborated in developing
Delaware's TANF program, in public information, in
implementation, and continue to collaborate in managing the
initiative.
The Delaware Transit Corporation (DTC) in the
Department of Transportation has joined the TANF
collaborative team, and has assisted to develop a statewide
transportation system plan for TANF, using vans and other
vehicle sources.
Minutes for the TANF collaboration team for the
previous six months are included as Attachment B.
In May 2001, the Business Planning Committee, a
subcommittee of the TANF collaborative team that deals
with transportation initiatives, sponsored a transportation
forum in each of the three counties .The purpose of the
forums was to bring together businessmen, community
leaders and other stake holders to develop and advance
innovative, non-traditional solutions to varying
transportation problems faced by each county.
Transportation forum highlights were a panel discussion
by the lead agencies that shared some "points of pride" in the
program and gaps and needs in transportation, Best Practices
Ideas and Transportation Information, Employer
Recognition of Innovative Success Solutions and brainstorming
sessions to identify transportation issues and to
gather ideas for further development. Each forum was
designed to highlight transportation problems that were
county specific. Sussex County Government, represented by
the Sussex County Administrator, was particularly effective
in explaining the population growth, the economic growth
and the problems created by their largely rural area.
As a result of the forums, the Business Planning
Committee has been able to identify some cross-cutting
themes statewide as well as county specific. They have also
been able to identify ideas that need further development and
which will be used as the Committee continues to find
innovative solutions to transportation problems. One overriding
theme from the forums was the lack of knowledge of
the current transportation options available. This has led to
the production of a transportation video which highlights all
the options available to assist individuals as they move from
dependency to self-sufficiency.
Another special partnership is that between the Division
of Social Services and the Division of Child Support
Enforcement. Both agencies are part of Delaware Health
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
452 PROPOSED REGULATIONS
and Social Services. This close linkage has enabled them to
partner throughout TANF development and implementation.
Involvement of Community, Education, Business,
Religious, Local Government and Non-Profit
Organizations to Provide Work
As noted in the discussion on page 2, every sector has
been actively involved in the development of Delaware's
TANF program and continues to be involved.
A TANF Employer Committee, consisting of
representatives of both the public and private sector, assists
in placing welfare recipients in unsubsidized jobs and
provides advice on direction, policy, and implementation of
welfare-to-work efforts. This committee was established
through HB 251. A major accomplishment of the Employer
Committee in conjunction with DEDO and the Department
of Education was the development of a program, Career Soft
Skills Essentials for employers, which is now posted on the
internet at www.delawareworkforce.com. The committee
regularly advises the collaborative team about TANF
employment issues. Minutes of committee meetings for the
prior year are included as Attachment C.
To further promote employer interest in hiring TANF
recipients, the Departments of Labor and Economic
Development meet with members of the business
community at regularly scheduled events like monthly
Chamber of Commerce meetings as well as at special events.
For example, to roll out Career Soft Skills Essentials, DEDO
hosted two conferences to link employers with trainers.
The Social Services Advisory Council is established by
executive order. The Governor appoints council members to
advise the directors of both the Division of Social Services
and the Division of Child Support Enforcement on matters
related to public assistance and child support services.
Council members represent the community, advocates, nonprofit
providers, educators, and interested citizens.
DSS and DCSE management regularly meets with the
Social Services Advisory Council to discuss TANF and other
Social Services and Child Support programs. Minutes of
Social Services Advisory Council meetings for February,
March, and April, 2002, along with information on current
Council members, are attached. The Council and DSS will
resume regular monthly meetings after the summer.
(Attachment D)
Client specific focus groups were also conducted by the
Director of DSS in 2000 and 2001. The 2000 focus groups,
held in different locations throughout the state from May
through November, asked recipients a series of questions
about the TANF program, to ascertain their knowledge of
various program requirements, and their experiences
obtaining assistance from DSS workers and contractors. The
2001 client focus groups were held from June through
October. They asked a series of questions about client work
and sanction experiences, and ascertained information about
specific services that had been of assistance and obstacles
that clients had to overcome to obtain and retain
employment. (Attachment E)
Based on these focus groups, there seemed to be a solid
majority opinion that people understood the rules, that
sanctions are appropriate, and that some people do need a
push to get motivated to get back into the job market.
However, clients did wish for more flexibility for individual
circumstances, and requested more assistance with
transportation and in juggling schedules so that program
requirements could be met.
Special interest groups such as One Church, One Family
and New Pathways have chosen to focus their resources on
welfare families and provided mentoring support to welfare
families.
Role Of Public And Private Contractors In Delivery Of
Services
Delaware has contracted with private for-profit and nonprofit
providers and the local community college network to
provide job readiness, job placement and retention services
to welfare clients since 1986. These contractual
arrangements continue under TANF. Contractors include
community and faith-based social services agencies and
organizations offering specialized services.
A number of community providers across the state
provide academic remediation to TANF recipients.
Who Must Participate
All adult caretakers and other adults in the time-limited
assistance unit who are not exempt must participate in TANF
employment and training related activities. The two
exemptions are: 1) a parent caring for a child under 13
weeks of age; and 2) an individual determined
unemployable by a health care professional.
Teen parents are required to attend elementary,
secondary, post-secondary, vocational, or training school,
participate in a GED program or work.
Services to Move Families to Work
Delaware's goal is to place the adult recipient in
unsubsidized employment as quickly as possible. To
accomplish this goal, the current menu of services includes:
• Work readiness/Life skills
• Job search/Job placement
• Job retention
• Work Experience/OJT
• Education, including vocational education, as
described in SB 101, effective July 2, 1999
Non-exempt TANF participants will participate in the
job search program, consisting of job readiness classes and
supervised job search activity. Unsuccessful job search
participants can be placed in another job search sequence or
another work-related activity such as an alternative work
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 453
experience, OJT, remediation or a skills training program.
Clients must keep appointments with Employment and
Training staff, cooperate in the development of the
employment activities included in their Contract of Mutual
Responsibility, and participate in employment and training
activities. The penalty for non-compliance with any of the
above client responsibilities will be subject to sanctions as
described in "Sanctions: Failure to Comply with the
Contract and Imposition of Sanctions" on page 29.
Work
Until January 1, 2000, one-parent families in the Time-
Limited Temporary Program were required to immediately
engage in meaningful job search and comply with conditions
set forth in their Contract of Mutual Responsibility including
work, education, and training activities. Failure to comply
with the work requirements resulted in the imposition of an
employment and training sanction. Recipients who were
unable to locate private sector jobs despite good faith efforts
to do so, were eligible to receive Work For Your Welfare
payments, for participating in a workfare job, for a
maximum of two more years.
Effective January 1, 2000, families initially applying for
or reapplying for benefits can only receive benefits if they
are employed or immediately participate in a Work For Your
Welfare position. Failure to comply with the work
requirements contained in their Contract of Mutual
Responsibility results in the imposition of an employment
and training sanction.
Single parent households are required to participate in
Work for Your Welfare up to 30 hours per week, determined
by dividing TANF and Food Stamp benefits by the minimum
wage. If the hours determined by dividing the grants by the
minimum wage exceed 30 hours per week, participants are
to complete no more than 30 hours maximum participation
hours. In addition to participating in Work For Your
Welfare, individuals must participate in 10 hours of job
search, education or a vocational activity per week.
Participants who fail to complete the hours required by
dividing their grant by the minimum wage will have their
grant adjusted. For each hour not worked, participants will
have the grant adjusted downward by the amount of the
minimum hourly wage. Participants who fail to complete the
10 hours of job search, education or a vocational activity per
week are subject to employment and training sanctions.
In two parent households, one parent must participate in
Work For Your Welfare and the second parent must
participate in a work-related activity, including child care.
The requirements for parents in two-parent households are
unchanged.
The January 1, 2000 change in the work requirements
for one-parent families means that, to receive Time-Limited
TANF benefits in Delaware, both one-parent and two-parent
families must either be employed or participate in a Work
For Your Welfare position with supplementary activities as
required. Delaware's requirement for immediate work
activities exceeds the federal TANF mandate.
An individual enrolled in the TANF Time-Limited
Program who, in accordance with the requirements in their
Contract of Mutual Responsibility, participates in
unsubsidized employment of at least twenty hours per week
is not required to participate in Work for Your Welfare.
Individuals participating in a combination of such
employment and education of at least twenty (20) hours per
week are also not required to participate in Work For Your
Welfare. TANF Contracts of Mutual Responsibility are
designed to fit individual circumstances. It is possible for an
individual enrolled in the TANF Time-Limited Program who
is engaged in at least twenty (20) hours of combined work
and allowable education activities to meet work
requirements, if their Contract of Mutual Responsibility
contains such an activity agreement.
Time limits for Delaware's Time-Limited TANF
Program are described in the section entitled, TANF Benefits
to Needy Families: Time Limits.
Protecting Current Workers from Displacement
Regarding the Work for Your Welfare program, DSS
conforms to Section (a)(5) of the Federal Unemployment
Tax Act which requires that a job offered cannot be available
as a result of a strike or labor dispute, that the job cannot
require the employee to join or prohibit the employee from
joining a labor organization, and that program participants
are not used to displace regular workers.
In addition DSS ensures that no participants, including
but not limited to those placed in either a Work For Your
Welfare placement or a community work experience
program, displace regular paid employees of any of the
organizations providing either the placement or the
community work experience. Such assurance complies with
State law contained in 31 Delaware Code, Chapter 9, Section
905(b). This assurance also complies with Section 407(f) of
TANF, which requires that DSS will not use federal funds
under TANF to place individuals in a work activity when:
• any individual is on a layoff from the same or a
substantially equivalent job;
• the employer has terminated any regular employee
or otherwise caused an involuntary reduction of its
workforce in order to fill the vacancy created with an adult
receiving TANF benefits.
In addition, DSS has established a grievance procedure,
in conformance with Section 407(f)(3) of TANF, for
resolving complaints for any alleged violation of
nondisplacement requirements. Employees or their
representatives who believe that their jobs are being
displaced or infringed upon shall present their complaint to
the employment contractor with authority over the
placement. If the contractor is unable to resolve the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
454 PROPOSED REGULATIONS
problem within 15 days, the employee or representative may
file a formal grievance in writing to the DSS Director’s
Office, who will hear a formal grievance. The employee will
have an opportunity to: present their grievance on the record;
present evidence; bring witnesses and cross examine
witnesses; be represented by counsel; and receive a written
decision.
Grievance hearings will be scheduled within thirty
calendar days of receipt of the formal grievance, and a
written decision will be issued within 30 days of the hearing.
If either party is dissatisfied with the State’s written decision,
they may appeal the decision to the U.S. Department of
Labor within 20 days of receipt of the written decision. The
procedures for appeal, which must be sent to the Office of
Administrative Law Judges, in the U.S. Department of
Labor, will be provided in writing with the decision.
Supportive Services
Delaware recognizes the importance of available child
care in helping recipients participate in work-related
activities, and securing and retaining unsubsidized
employment. To that end, the financial resources provided
for child care have been significantly increased from the
FY95 child care funding level to the current request for
funding.
Supportive Services, such as child care, and TANF
provided assistance with other work-related expenses, such
as eye examinations and corrective lenses, dental, and
physicals not covered by Medicaid, transportation, fees,
training, and work-related equipment, uniforms, shoes, and
supplies will be available where possible. Services are
provided by voucher or directly. In addition, TANF will, on a
case by case basis, pay fees to purchase certificates, licenses,
or testing needed to obtain employment. Medical services
are not part of these supportive services. DSS will determine
when such services are necessary for a TANF recipient to
participate. The services shall include:
• Support provided by contractors to retain
employment for one (1) year
• Health care for Delaware citizens through:
• providing Medicaid coverage to uninsured
adults with income at or below 100 percent of the
federal poverty level
• providing medical coverage for uninsured
children in families with income up to 200% of the
federal poverty level, through the Delaware Healthy
Children program
• providing transitional Medicaid for two years
for families with children who exit welfare, at
incomes up to 185% of poverty.
• Subsidized child care for families who leaveTANF
to go to work for a period of two years, as long as family
income remains below 200 percent of the federal poverty
level. In addition, to help individuals retain unsubsidized
employment beyond two (2) years, Delaware also provides
subsidized child care to other low income working families
until the family’s income exceeds 200 percent of the federal
poverty level.
• Job search programs and other assistance from the
Department of Labor to find a job; and
• ongoing job retention assistance.
Additional Targeted Support
Family Development Profile
The Family Development Profile is used by Delaware to
identify possible social, familial, and emotional barriers to
self-sufficiency, insofar as they impact an individual’s ability
to obtain and retain employment. Participants who
complete the Profile answer questions about their selfesteem
and health, and relationships with family members
and other individuals. The Profile is currently being
enhanced to provide the capacity to identify mental health
problems.
DSS workers report that the Profile frequently surfaces
major domestic issues which participants need to resolve.
By utilizing the Profile, workers are able to refer participants
for assistance in resolving domestic violence and other abuse
situations. Further efforts to assist individuals to resolve
domestic violence and other abuse situations are described in
a later section: PARENTAL RESPONSIBILITY: Addressing
Problems of Statutory Rape and Domestic Violence.
Substance Abuse
As part of the application and redetermination
processes, workers ask clients a series of questions, called
the CAGE questions, to identify substance abusers for
referral to appropriate services. Through the Bridge
Program and referrals to DSAMH, Delaware's TANF
program offers assessment and non-medical treatment
services for all substance abusers identified through this and
other methods. DSAMH and Medicaid will ensure that if
medical treatment services are needed they are paid from
other than TANF funds.
Supporting Teens
Delaware is targeting youth by providing special
services. Through the Department of Education, Delaware
provides a family literacy program which includes parenting
skills training and other services to teen parents and their
children to prevent repeat pregnancies.
Beginning with FY 1999 funds were allocated for
Delaware's Teen Pregnancy Prevention Initiative, Teen
Hope, to support activities for at-risk teens in six School
Based Health Centers (SBHCs) and one community site.
The program, utilizing the Transtheoretical Behavior Change
Model, helps youth develop skills to make better sexual and
health related decisions. Initial programs have been very
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 455
successful. In addition, wellness centers located in 27 high
schools provide medical, health and counseling services to
high school students.
Several other initiatives are being operated. The
AmeriCorp Grant partnership grant with DHSS as lead was
awarded in 1999. Under this grant, Planned Parenthood is
managing an effort to have AmeriCorp members provide a
responsible adult presence and a structured environment for
youth to learn, as a strategy to prevent teen pregnancy, in the
lives of at-risk teens in selected target areas. The Abstinence
Education Grant currently provides mini-grants to agencies
providing skills building community programs for teens.
Delaware has undertaken, through an Alliance on
Adolescent Pregnancy Prevention (AAPP), a grassroots
community and media outreach campaign to convince
teenagers to postpone sexual activity and to avoid becoming
or making someone else pregnant. AAPP works directly
with parents in this initiative to improve communication
between parents and children around sexuality and
pregnancy prevention. In addition, AAPP provides
preventive education and distributes information on
preventing teen pregnancy, utilizing a number of kinds of
interventions. For example, two full-time community
educators visit schools, community centers, churches, and
camps; and provide workshops/training to parents and
children around sexuality and teen pregnancy prevention.
AAPP also maintains a resource center for the community
and lends or gives away brochures, videos, curriculum,
posters, books, and other communications about teen
pregnancy prevention and sexuality.
The Wise Guys initiative is an adolescent male
responsibility program that uses an established Wise Guys
curriculum over a ten-week period. The program, operating
in six high school based health centers, promotes character
development and prevention of adolescent pregnancy by
teaching young males self-responsibility in several areas.
Delaware's teen pregnancy prevention campaign also
uses billboards to convey the message, and statewide
conferences to provide assistance implementing prevention
activities.
Delaware's TANF program provides a positive incentive
to teenagers to graduate high school by age 19 by awarding a
one-time $50 bonus. Additionally, TANF requires teenage
mothers currently on welfare to live with their parent(s) or a
responsible adult, stay in school, immunize their children
and participate in parenting education.
Services to teens are also discussed in the Section
entitled Parental Responsibility Efforts to Reduce Out-Of-
Wedlock Births.
Delivery of Services Across State
Delivery of services will be consistent across the State.
Tanf Benefits To Needy Families
Computing the Benefit
Eligibility will be determined prospectively. After
establishing eligibility, benefits will be computed
prospectively. Income per time period will be converted to a
monthly income figure by utilizing the following conversion
factors:
Weekly 4.33
Bi-weekly2.16
Semi-monthly2.00
Example: Given a weekly income of $85, multiply by
4.33 to arrive at a monthly income of $368.05.
The benefit amount will be determined by using
prospective budgeting and the best estimate of earned and
unearned income for the assistance unit. The payment will
not be changed until the next eligibility determination,
unless the recipient reports a change that would result in an
increase in the benefit or there is a significant change in
circumstances as defined below.
A significant change is defined as any of the following:
• change in household size;
• new source of employment;
• loss of unsubsidized employment or a change
in employment status from full time to part time which was
beyond the recipient’s control;
• an increase of forty (40) hours or more in
unsubsidized employment per month;
• receipt of a new source of unearned income; or
• increases or decreases in existing sources of
unearned income totaling $50.00 or more per month.
The recipient needs to verify all changes in
circumstances.
Example: An applicant applies in May. The applicant is
employed. The applicant is working 20 hours per week and
earns $5.65 per hour. The best estimate of wages is
calculated by multiplying 20 hours times $5.65 ($113.00 per
week), then multiplying the weekly figure by 4.33 to
determine the monthly income of $485.90.
Redeterminations
At least one redetermination is required every six (6)
months. TANF emphasizes work and work related activity.
Mandating face-to-face redeterminations might undermine
that goal. Therefore, mail-in redeterminations, with a
telephone interview are used as an option to encourage
recipients to continue participating in employment and
training activities or to keep working.
When a redetermination is due, the recipient must
complete a new DSS application form (FORM 100). A
redetermination is complete when all eligibility factors are
examined and a decision regarding continuing eligibility is
reached.
The assistance case will be closed if a recipient fails,
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
456 PROPOSED REGULATIONS
without good cause, to complete the redetermination review.
Likewise, the assistance case of a recipient who fails,
without good cause, to provide requested information
necessary to establish continued eligibility will be closed.
As part of the verification process for continuing
eligibility, the person will provide verification that s/he has
carried out the elements of the individual Contract of Mutual
Responsibility.
Time Limits
Under TANF, cash benefits are time-limited for
households headed by employable adults age 18 or older
who are included in the grant. Prior to January 1, 2000,
Delaware limited receipt of TANF, for families in the Time-
Limited Program, to twenty-four (24) cumulative months.
During the time-limited period, employable adults received
full benefits if they met the requirements of their Contract of
Mutual Responsibility, including employment-related
activities.
After the first 24 month cumulative period ended,
families headed by employable adults could continue to
receive cash benefits for an additional 24 cumulative months
only as long as the adults participated in a Work For Your
Welfare work experience program or they were working and
family income was below the need standard of 75 percent of
the Federal Poverty Level.
Effective January 1, 2000 the time limit for receipt of
TANF cash benefits is thirty-six (36) cumulative months.
During the time-limited period, employable adult
recipients receive full cash benefits only as long as they meet
the requirements of their Contract of Mutual Responsibility,
including participation in employment-related activities. The
ultimate goal of this time-limited period is to support the
employable adult’s search for and placement in an
unsubsidized job. Time limits will not apply when
Delaware's unemployment rate substantially exceeds the
national average or is greater than 7.5 percent.
Individuals found eligible for TANF prior to January 1,
2000 will still have a forty-eight (48) month time limit even
if they reapply for benefits on or after January 1, 2000.
DSS will track the time remaining before a family’s
time limits expire and notify families on a quarterly basis of
the time they have remaining before the time limits expire.
At least two (2) months prior to the end of the 36 or 48
cumulative months in which a family has received
assistance, DSS will remind the family that assistance will
end and notify the family of the right to apply for an
extension.
Extensions will be provided only to those families who
can demonstrate that:
• the agency substantially failed to provide the
services specified in the individual’s Contract of Mutual
Responsibility; the related extension will correspond to the
time period for which services were not provided; or
• despite their best efforts to find and keep
employment, no suitable unsubsidized employment was
available in the local economy to the employable adult
caretaker; the maximum extension under such circumstances
will be 12 months.
Extensions may also be granted where other unique
circumstances exist. Extensions will not be granted if the
adult caretaker received and rejected offers of employment,
quit a job without good cause, or was fired for cause or if the
adult caretaker did not make a good faith effort to comply
with the terms of the Contract of Mutual Responsibility.
Retroactively, starting October 1, 1995, Delaware
exempted months in which a person worked twenty hours or
more per from counting toward the Delaware lifetime time
limit when the countable income of the family is below the
need standard. So that families who have not reached the
State’s 36/48 month time limit won’t reach the Federal 60
month time limit, benefits for these families are provided
under a segregated program using State MOE funding,
beginning October 1, 1999. However, both the federal and
Delaware time clocks continue to run for individuals who
meet their work participation requirements by participating,
as permitted under the waiver, in a combination of
employment and education for at least twenty (20) hours a
week; and for individuals who meet their work participation
requirements by participating in education for at least twenty
(20) hours a week.
After the time limit has been reached, benefits will be
provided to families who have been granted an extension
only for a maximum period of 12 months and only in the
Work For Your Welfare component. Thus, for Time-Limited
families, unless the caretaker is employed at least twenty
(20) hours per week, the maximum period for receipt of
benefits to families enrolled in the Time-Limited TANF
Program will be sixty (60) cumulative months for families
with a forty-eight (48) cumulative time limit and forty-eight
(48) months for families with a thirty-six (36) month time
limit.
Sanctions: Failure to Comply with the Contract and the
Imposition of Sanctions
The Contract of Mutual Responsibility encompasses
three broad categories of requirements: 1) enhanced family
functioning; 2) self-sufficiency; and 3) teen responsibility
requirements.
1) Enhanced family functioning requirements of
the Contract include, but are not limited to, acquiring family
planning information and attending parenting education
sessions, ensuring that children are immunized, and
participating in substance abuse assessment and treatment.
Sanction for non-compliance with these requirements is an
initial $50 which will increase by $50 every month until
there is compliance with the requirement. The initial $50
reduction will be imposed whether the family fails to comply
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 457
with one, or more than one requirement. Clients will have to
comply with all requirements before the sanction can end.
2) Self-sufficiency requirements of the Contract
of Mutual Responsibility are employment and training,
work-related activities, and ensuring school attendance
requirements for dependent children under age 16.
• The sanction for non-compliance with
these requirements is a 1/3 reduction of the benefit for the
first occurrence, 2/3 reduction for the second occurrence and
a total and permanent loss of the benefit for the third
occurrence for work related activities. A third occurrence of
the penalty for a child under 16 not attending school is loss
of all cash benefits but is curable when the parent
demonstrates compliance. The duration of the first and
second sanctions will each be two months or until the person
complies. If, at the end of the two month period, there is no
demonstrated compliance, the sanction will increase to the
next level.
• Clients will have to demonstrate
compliance with all self-sufficiency requirements before all
benefits are restored.
• For the purpose of determining that the
individual’s failure to comply has ended, the individual must
participate in the activity to which s/he was previously
assigned, or an activity designed by the Employment and
Training provider to lead to full participation, for a period of
up to two weeks before ending the sanction.
• The penalty for individuals who quit their
jobs without good cause and do not comply with subsequent
job search requirements will be loss of all cash benefits. The
penalty for individuals who quit their jobs without good
cause, but who comply with subsequent job search
requirements, will be:
• for a first offense, a 1/3 reduction in
TANF, to be imposed for a period of two months;
• for a second offense, a 2/3 reduction
in TANF, to be imposed for a period of two months;
• for a third offense, a permanent loss of
all cash benefits.
• For dependent children under age 16,
including teen parents, the sanction will not be imposed if
the parent of the teen is working with school officials or
other agencies to remediate the situation.
3) Teen responsibility requirements include
maintaining satisfactory school attendance, or participation
in alternative activities such as training or employment, for
dependent children 16 years of age and older. The sanction
for non-compliance with these requirements is to remove the
needs of the teen from the TANF benefit and to remove the
needs of the caretaker if the caretaker does not work to
remedy the situation. Complying with the requirements ends
the sanction.
Failing to comply with both the enhanced family
functioning and self-sufficiency requirements will result in
combined penalties. For example, both a $50 reduction and
a 1/3 reduction to the benefit could be assessed for first
failures to comply in two areas. Demonstrated compliance
will not excuse penalties for the period of noncompliance.
Sanctions will be imposed for the full period of
noncompliance.
Benefit Delivery: Direct Payments and Vouchers
Currently, Delaware uses check issuance as the payment
method for TANF.
Delaware directly pays for center-based child care
authorized for TANF participants, where the center agrees to
accept the Delaware child care reimbursement rate. Some
caretakers, however, receive vouchers to self-arrange and
pay for their child care. Delaware will reimburse these
caretakers, up to the rates published in the Child Care and
Development Fund (CCDF) plan, for the cost of child care
provided by licensed and license-exempt child care
providers.
Staff Training
TANF training has been incorporated into the Cash
Grant training which is required for all new financial
services staff. APHSA training has now been incorporated
into Interviewing and Coaching training which is required
for all new staff.
Parental Responsibility
Adults and minor parent(s) are required to comply with
parenting expectations outlined in the Contract of Mutual
Responsibility.
Cooperation with Child Support Enforcement
Participants in TANF must cooperate with the Division
of Child Support Enforcement as a condition of eligibility.
In addition, all families are required to provide sufficient
information to permit Delaware to obtain child support on
behalf of the family. Exceptions can be made when the
caretaker demonstrates that pursuit of child support would
create a danger to the caretaker or the child(ren). It is the
responsibility of the client to provide documentation to
verify such a good cause claim.
Failure of a caretaker, without good cause, to cooperate
with and provide information to the DCSE to permit the
State to pursue the collection of child support on behalf of
dependent children will result in a full family sanction, until
compliance. Applicants who fail to provide information so
that Delaware may pursue child support collections will be
denied. To cure the child support sanction, the caretaker will
provide sufficient information to permit Delaware to pursue
child support collections on behalf of the needy children in
the family.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
458 PROPOSED REGULATIONS
When a child lives with both the natural father and the
mother but paternity has not been legally established, the
parents will be referred to the Division of Child Support
Enforcement (DCSE) for a voluntary acknowledgment of
paternity. If the alleged father is unwilling to complete the
voluntary acknowledgment of paternity, DSS will consider
the child deprived of the care and support of his/her father.
The case will be referred to DCSE for follow up on
establishing paternity.
When a child lives with the natural father but paternity
has not been legally established, the father will complete a
declaration of natural relationship document and will
provide acceptable verification of relationship.
When a child lives with a relative of the natural father
but paternity has not been legally established, the relative
must complete a declaration of natural relationship
document and provide acceptable verification of
relationship.
In Delaware, DCSE determines non-cooperation with
child support requirements. In addition, effective January 1,
1999 DCSE began making the determination of good cause.
Distribution of Child Support Collections to TANF
Recipients
Delaware, a fill-the-gap state in 1975, uses fill-the-gap
to make sure that families do not experience a net loss of
income due to the State retaining Child Support paid by
absent parents. A portion of Child Support payments is not
counted in calculating the grant.
Efforts to Reduce Out-of Wedlock Births
Delaware believes that the number of out-of-wedlock
births to teens must be reduced significantly to eliminate
poverty and dependency. A study by Doble Research
Associates commissioned by the Governor’s Family
Council, in June, 1998, concluded that Delaware's efforts to
reduce teen pregnancy, including establishing more afterschool
program, strongly enforcing child-support
enforcement and the Sexual Predator Act, and making teen
mothers ineligible for cash assistance, are solidly supported
by public opinion. We are undertaking a number of
statewide initiatives to reduce adolescent pregnancy. Many
of these initiatives are being coordinated through the
activities of the Alliance for Adolescent Pregnancy
Prevention (AAPP). Ventures include the provision of
adolescent health services through school-based health
centers and improving teen utilization of our family planning
centers.
The AAPP is a statewide public and private partnership
charged with the development and implementation of a
comprehensive plan to prevent adolescent pregnancy in
Delaware. The organizational structure of the Alliance
includes a 12 member advisory board appointed by the
Governor and a statewide membership of over 200 schools,
agencies, organizations, churches, and individuals concerned
with teen pregnancy. Staff and program support for the
Alliance is provided through a contract from the Division of
Public Health (DPH) to Christiana Care.
Since its inception, the AAPP has awarded mini-grants
to non-profit youth organizations to provide community
based teen pregnancy programs; implemented a statewide
media campaign to increase community awareness; and
worked with existing coalitions to establish teen pregnancy
prevention programs. AAAP plans and activities include:
• statewide leadership to develop a visible, viable
structure for mobilizing resources needed to impact the
problem;
• data development to develop a methodology to
monitor rates in real time;
• public relations efforts to increase community
awareness and involvement; and
• identifying barriers to teen utilization of family
planning services and developing solutions
The Division of Public Health has the lead
responsibility in Delaware to implement initiatives to reduce
teen pregnancy. Using the strategies and recommendations
presented by AAPP, DPH activities include school based
health centers, family planning clinics, parenting education,
and the peer leadership program. The "teen friendly"
services provided at Department of Public Health Units
located at State Service Centers have resulted in a significant
increase in use. In addition, all clients seen in Sexually
Transmitted Disease Clinic sites receive counseling on
family planning, as well as pregnancy prevention supplies.
Based on a report by Adolescent Health Survey
Research (AHSR), which used a survey and focus groups
with youth and their parents conducted early in 1999 to
identify top strategies in pregnancy prevention, Delaware
implemented a number of initiatives to prevent subsequent
births, including:
• Smart Start, an enhanced prenatal program that
attempts to decrease low birth weight babies, infant
mortality, and maternal mortality, through social service,
nutritional, and nursing support to at-risk pregnant women;
• Placing information on our combined Food Stamp/
cash assistance/MA applications for the following telephone
numbers: Planned Parenthood, AAPP and Delaware
Helpline, to obtain information on pregnancy prevention/
family planning.
In addition, family planning and reproductive health
services are provided to adults in eight public health
locations in Delaware; and similar services are provided to
adults by Planned Parenthood of Delaware in five locations
in the state. Minority populations are targeted through
family planning and reproductive health services available at
three Federally Qualified Health Centers in Delaware; and
family planning and reproductive health services are
available to Delaware State University students through the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 459
DSU health center.
These Delaware initiatives to reduce out-of-wedlock
births are complemented and strengthened by the policies of
TANF which:
• Require adults and minor parent(s) to obtain family
planning information from the provider of their choice;
• Provide for a fiscal sanction of an initial $50
reduction in benefits for failure, without good cause, to
obtain family planning information. This reduction will
increase each month by $50.00, either until there is
compliance or the case is closed. The sanction will end
when the adult and/or minor parent(s) obtains the family
planning information at the provider of their choice;
• Eliminate benefit increases for children conceived
while a caretaker is receiving TANF, and apply this family
cap to children who are the firstborn of minors included in a
TANF grant where the children are born after March 1, 1997;
and
• Treat two parent families the same as single parent
families.
Initiatives to Promote Two-Parent Families
To provide broad-based support for working families,
Delaware was one of the first States to recognize that the
special eligibility requirements that applied to two-parent
families contributed both to the non-formation and the break
up of two-parent households. The six-quarter work history
requirement was particularly responsible for non-marriage of
teen parents, who had not yet worked enough to meet this
qualification. The denial of benefits to two-parent families if
one of the parents was working at least 100 hours a month
also contributed to the low work rate of two-parent families
which were receiving AFDC.
When Delaware eliminated these special deprivation
requirements as part of our welfare reform waiver, the
numbers of two-parent families receiving TANF soared, and
we believe that, without the TANF change, many of these
households would have applied for and been found eligible
for benefits as single mother families. These never formed
two-parent households would have had profound effects on
the ability of the family to exit welfare and on the future
success of the children. We have found that the average
length of stay on TANF is much lower for two-parent
families, reflecting the greater incidence of retained
employment when two adults are able to engage in work and
share child care duties.
Delaware has always allowed taxpayers to file
separately and applied the progressive rate structure to each
spouse’s income separately, which avoided most tax
increases resulting from marriage. However, a marriage
penalty could still result from uneven standard deduction
amounts. By increasing the standard deduction amount for
married taxpayers to exactly twice the single standard
deduction beginning January 1, 2000, enactment of HB 411
has effectively eliminated the income tax "marriage penalty"
in the State of Delaware
Addressing Problems of Statutory Rape and Domestic
Violence
Statutory Rape
The Sexual Predator Act of 1996 imposes more severe
criminal sanctions on adult males who are significantly older
than their victims and holds them financially accountable
when children are born as a result of violations of this law.
The legislation requires a cooperative agreement as part
of a multi-faceted effort to combat teenage pregnancy and
reform welfare. Specifically, the law requires the Attorney
General’s Office, the Department of Health and Social
Services, the Department of Services to Children Youth and
Their Families, the Department of Public Instruction and law
enforcement agencies statewide to establish a cooperative
agreement specifying the various roles of the agencies
involved. The Memorandum of Understanding establishing
the cooperative agreement, executed on December 10, 1996,
and SB346 are provided as Attachment F.
Victims of Domestic Violence
As required under the optional Certification of
Standards and Procedures to Ensure that a State Will Screen
for and Identify Domestic Violence, DSS will refer
identified victims of domestic violence to appropriate
services such as shelters and counseling and to Family
Court. Under the Protection from Abuse Act (PFA), 10
Delaware Code, Chapter 9, Sections 1041-1048
(Attachment G), Family Court has the power and authority
to expeditiously adjudicate all matters related to domestic
violence including court ordered restraints, custody, property
and financial resources.
Through this strong domestic violence Law, Delaware is
clearly committed to assisting victims of domestic violence
overcome circumstances which put them in physical,
emotional and/or financial jeopardy; and to assist them is
seeking redress and a safe environment for themselves and
their families. The Law is a strong deterrent to domestic
violence, according to a study by the National Center for
State Courts, released on December 2, 1996. The study
reported that 86 percent of those who sought protection
under the Law, which permits individuals in danger of
serious physical abuse to obtain a protection order, were no
longer being physically abused.
In addition, using our Family Development Profile,
caseworkers ask a series of screening questions designed to
identify victims of domestic violence. (See Attachment H)
So that we are certain that workers can use this tool to
effectively identify domestic violence issues, beginning
1998 all staff members at each of Delaware's 14 field sites
receive a full day of Domestic Violence Training, focused on
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
460 PROPOSED REGULATIONS
the impact of domestic violence on clients and their ability to
abide by the conditions of the Contract of Mutual
Responsibility. As part of this training, staff learn how to
recognize and assist women who are victims of domestic
violence. DSS has continued this training on an ongoing
basis and now provides the training not only to field staff but
to all staff.
We believe that our methodology of resolving domestic
violence situations as quickly as possible, as provided for
under a strong statute, is the most appropriate and best
course of action to assist current victims and to prevent
future violence where possible.
Delaware certifies that the Family Development Profile
establishes a procedure that screens for domestic violence
and that, pursuant to a determination of good cause, program
requirements may be waived if it is determined that
compliance would make it more difficult for individuals to
escape violence. However, decisions to waive compliance
with TANF requirements will be made on an individual, case
by case basis, and will not endorse an individual’s failure to
behave proactively to ameliorate destructive domestic
violence situations. For our program to work, domestic
violence victims must take actions to recover their lives,
using the relief provided by the domestic violence statute
and the other resources Delaware makes available.
Tribes
Delaware has no federally recognized tribes.
Administration
Structure Of Agency
The Department of Health and Social Services is the
cabinet level agency designated by the State as responsible
for Delaware's public assistance programs as allowed under
Title IV-A of the Social Security Act. Within the
Department, the Division of Social Services administers
these programs. (Organizational chart included as
Attachment I to State Plan.)
Administrative Spending
Delaware will comply with federal requirements.
Compliance With Participation Rates
In order that federal TANF funds are spent in
accordance with the law (P.L. 104-193), Delaware will
ensure compliance with the mandatory work and
participation rate provisions of the law (as modified by this
State Plan which includes our previously approved waivers,
described in the Waiver Inconsistency Certification,
submitted to the U.S. Department of Health and Human
Services on September 27, 1999.)
Delaware intends to meet the participation rate
requirements set forth in theTANF legislation. If the waiver
is extended, as is proposed by the reauthorization legislation
approved by the Senate Finance Committee, we will
continue to operate in accordance with participation
requirements in the waiver. If the waiver is not extended we
will makes necessary changes to ensure that we meet federal
participation mandates. In either situation, Delaware will
ensure that federal TANF funds are expended for groups of
TANF clients engaged in work, using federally acceptable
work activities.
Maintenance of Effort
Delaware is aware of and intends to fully comply with
the requirements of the law (P.L. 104-193) to maintain a
prescribed level of historic state expenditures. Delaware
will ensure that expenditures of state funds for benefits and
services ("Qualified State Expenditures" as defined in the
law) for TANF participants (either in the Part A federally
funded program or non-Part A state funded program) who
are TANF eligibles will equal or exceed the required annual
spending level.
Delaware has opted to continue the issuance of child
support disregard and child support supplemental payments
to TANF clients under our fill-the-gap waiver. Delaware
considers these payments to be "cash assistance" to eligible
families and therefore to be within the definition of
"Qualified State Expenditures".
Financial eligibility criteria for MOE-funded assistance
or services are the same as for other TANF assistance or
services, except that MOE claimed for child care under the
provisions of section 263.3 will follow the financial
eligibility criteria established in the CCDF State Plan and
associated State regulations.
Implementation Date and Plan Submittal Date
The plan is submitted for certification of completeness
on October 1, 2002. The implementation date for the
provisions of this plan is October 1, 2002. Any subsequent
amendments to this Plan will be indicated by amending the
page of the Plan that describes the program or function being
changed.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 461
DEPARTMENT OF JUSTICE
DELAWARE SECURITIES ACT
Statutory Authority: 6 Delaware Code,
Sections 7313, 6314 and 7325
(6 Del. C. §§7313, 7314 & 7325)
Notice Of Proposed Revisions To The Rules And
Regulations Pursuant To The Delaware Securities Act
In compliance with the State’s Administrative
Procedures Act (APA-Title 29, Chapter 101 of the Delaware
Code) and section 7325(b) of Title 6 of the Delaware COde,
the Division of Securities of the Delaware Department of
Justice hereby publishes notice of proposed revisions to the
Rules and Regulations Pursuant to the Delaware Securities
Act. The Division proposes hereby to amend sections 600,
601, 608, and 700 of the Rules and Regulations Pursuant to
the Delaware Securities Act and to add a new section 610.
Persons wishing to comment on the proposed
regulations may submit their comments in writing to:
James B. Ropp
Securities Commissioner
Department of Justice
State Office Building, 5th Floor
820 N. French Street
Wilmington, DE 19801
The comment period on the proposed regulations will be
held open for a period of thirty days from the date of the
publication of this notice in the Delaware Register of
Regulations.
SUMMARY OF THE PROPOSED REVISIONS
1. Canadian Broker-Dealer Exemption:
The Securities Division proposes to revise the
Canadian broker-dealer registration exemption set forth at
section 608 of the Rules and Regulations Pursuant to the
Delaware Securities Act to extend to Canadian broker-dealer
agents the benefit of the exemption. The proposed revision
is consistent with the model regulation as drafted by the
North American Securities Administrators Association
("NASAA"). These revisions are being proposed to correct
what appears to have been an inadvertent oversight when the
exemption was originally promulgated.
2. Registration Requirements for Sole Proprietorships:
The Securities Division proposes to revise the
registration requirements for broker-dealers and investment
advisors to clarify that a person conducting a brokerage or
investment advisory business as a sole proprietor need not
register an agent or representative with the Securities
Commissioner.
PROPOSED REVISIONS
Part F. Broker-Dealers, Broker-Dealer Agents, and
Issuer Agents
§600 Registration of Broker-Dealers
(a) A person applying for a license as a broker-dealer
in Delaware shall make application for such license on Form
BD (Uniform Application for Broker-Dealer Registration).
Amendments to such applications shall also be made on
Form BD.
(b) An applicant who is registered or registering under
the Securities Exchange Act of 1934 shall file its
application, together with the fee required by Section 7314
of the Act, with the NASD Central Registration Depository
("CRD") and shall file with the Commissioner such other
information as the Commissioner may reasonably require.
(c) An applicant who is not registered or registering
under the Securities Exchange Act of 1934 shall file its
application; the fee required by Section 7314 of the Act; and
an audited financial statement prepared in accordance with
17 C.F.R. §240.17a-5(d) with the Commissioner, together
with such other information as the Commissioner may
reasonably require.
(d) A broker-dealer registered with the Commissioner
shall register at least one agent] with the Commissioner.
(d) Except for a broker-dealer that is a sole
proprietorship or the substantial equivalent, a broker-dealer
registered with the Commissioner shall register with the
Commissioner at least on broker-dealer agent.
(e) Registration expires at the end of the calendar year.
Any broker-dealer may renew its registration by filing with
the NASD CRD, or with the Commissioner in the case of a
broker-dealer not registered under the Securities Exchange
Act of 1934, such information as is required by the NASD,
together with the fee required by Section 7314 of the Act.
See 1 DE Reg 1978 (6/1/98)
§601 Registration of Broker-Dealer Agents
(a) A person applying for a license as a broker-dealer
agent in Delaware shall make application for such license on
Form U-4 (Uniform Application for Securities Industry
Registration or Transfer). Amendments to such application
shall also be made on Form U-4.
(b) An applicant for registration as an agent for a
broker-dealer that is a member of the NASD shall file his or
her application, together with the fee required by Section
7314 of the Act, with the NASD CRD and shall file with the
Commissioner such other information as the Commissioner
may reasonably require.
(c) Any applicant for registration as an agent for a
broker-dealer that is not an NASD member shall file his or
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
462 PROPOSED REGULATIONS
her application, together with the fee required by Section
7314 of the Act, with the Commissioner, together with such
other information as the Commissioner may reasonably
require.
(d) Any applicant for a broker-dealer agent license
must also successfully complete the Uniform Securities
Agent State Law Examination (Series 63 or 66)
administered by the NASD. The Commissioner may waive
the exam requirement upon good cause shown.
(d) Registration expires at the end of the calendar year.
Any broker-dealer agent may renew its registration by filing
with the NASD CRD, or with the Commissioner in the case
of a broker-dealer agent employed by a broker-dealer not
registered under the Securities Exchange Act of 1934, such
information as is required by the NASD, together with the
fee required by Section 7314 of the Act.
(e) Registration expires at the end of the calendar year.
Any broker-dealer agent may renew its registration by filing
with the NASD CRD, or with the Commissioner in the case
of a broker-dealer agent employed by a broker-dealer not
registered under the Securities Exchange Act of 1934, such
information as is required by the NASD, together with the
fee required by Section 7314 of the Act.
See 1 DE Reg 1978 (6/1/98)
§602 Registration of Issuer Agents
(a) A person applying for a license as an issuer agent in
Delaware shall make application for such license on Form
U-4 (Uniform Application for Securities Industry
Registration or Transfer). Amendments to such application
shall also be made on Form U-4.
(b) An applicant for registration as an issuer agent shall
file his or her application and the fee required by Section
7314 of the Act with the Commissioner, together with such
further information as the Commissioner may reasonably
require.
(c) Any applicant for an issuer agent license must also
successfully complete the Uniform Securities Agent State
Law Examination (Series 63 or 66) administered by the
NASD. The Commissioner may waive the exam
requirement upon good cause shown.
See 1 DE Reg 1978 (6/1/98)
§603Continuing Obligation of Registrants to Keep
Information Current
(a) Persons registering or registered as broker-dealers,
broker-dealer agents or issuer agents are required to keep
reasonably current the information set forth in their
applications for registration and to notify the Commissioner
of any material change to any information reported in their
application for registration. An applicant or registrant who
is registered with the NASD may notify the Commissioner
of such material change by filing an amendment through the
NASD CRD. All other persons shall notify the
Commissioner directly.
(b) Failure to keep current the information set forth in
an application or to notify the Commissioner of any material
change to any information reported in the application shall
constitute a waiver of any objection to or claim regarding
any action taken by the Commissioner in reliance on
information currently on file with the Commissioner.
See 1 DE Reg 1978 (6/1/98)
§604 Minimum Financial Requirements and
Financial Reporting Requirements of Broker-Dealers
(a) Each broker-dealer registered or required to be
registered under the Act shall comply with SEC Rules
15c3-1 (17 C.F.R. §240.15c3-1), 15c3-2 (17 C.F.R.
§240.15c3-2), and 15c3-3 (17 C.F.R. §240.15c3-3).
(b) Each broker-dealer registered or to be registered
under the Delaware Securities Act shall comply with SEC
Rule 17a-11 (17 C.F.R. §240.17a-11) and shall file with the
Commissioner, upon request, copies of notices and reports
required under SEC Rules 17a-5(17 C.F.R. §240.17a-5),
17a-10 (17 C.F.R. §240.17a-10), and 17a-11 (17 C.F.R.
§240.17a-11).
(c) To the extent that the SEC promulgates changes to
the above-referenced rules, broker-dealers in compliance
with such rules as amended shall not be subject to
enforcement action by the Securities Division for violation
of this section to the extent that the violation results solely
from the broker-dealer’s compliance with the amended rule.
§605 Bonding Requirements of Intrastate
Broker-Dealers
Every broker-dealer registered or required to be
registered under the Act whose business is exclusively
intrastate, who does not make use of any facility of a
national securities exchange, and who is not registered under
Section 15 of the Securities Exchange Act of 1934 shall be
bonded in an amount of not less than $100,000 by a bonding
company qualified to do business in this state.
§606 Record keeping Requirements of
Broker-Dealers
(a) Unless otherwise provided by order of the SEC,
each broker-dealer registered or required to be registered
under the Act shall make, maintain, and preserve books and
records in compliance with SEC Rules 17a-3 (17 C.F.R.
§240.17a-3), 17a-4 (17 C.F.R. §240.17a-4), 15c2-6 (17
C.F.R. §240.15c2-6) and 15c2-11 (17 C.F.R. §240.15c2-11).
(b) To the extent that the SEC promulgates changes to
the above-referenced rules, broker-dealers in compliance
with such rules as amended shall not be subject to
enforcement action by the Securities Division for violation
of this section to the extent that the violation results solely
from the broker-dealer’s compliance with the amended rule.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 463
§607Use of the Internet for General Dissemination of
Information on Products and Services
(a) Broker-dealers and broker-dealer agents who use
the Internet to distribute information on securities, products
or services through communications made on the Internet
directed generally to anyone having access to the Internet,
and transmitted through postings on Bulletin Boards,
displays on "Home Pages" or otherwise (an "Internet
Communication") shall not be deemed to be "transacting
business" in Delaware for purposes of Section 7313 of the
Act based solely on the Internet Communication if the
following conditions are met:
(1) The Internet Communication contains a legend
in which it is clearly stated that:
(i) the broker-dealer or agent in question may
only transact business in a state requiring registration if first
registered, excluded or exempted from state broker-dealer
or agent registration requirements, as the case may be; and
(ii) follow-up, individual responses to persons
in Delaware by such broker-dealer, or agent that involve
either the effecting or attempting to effect transactions in
securities, will not be made absent compliance with state
broker-dealer or agent registration requirements, or an
applicable exemption or exclusion;
(2) The Internet Communication contains a
mechanism, including and without limitations, technical
"firewalls" or other implemented policies and procedures,
designed reasonably to ensure that prior to any subsequent,
direct communication with prospective customers or clients
in Delaware, said broker-dealer or agent is first registered in
Delaware or qualifies for an exemption or exclusion from
such requirement. Nothing in this paragraph shall be
construed to relieve a state registered broker-dealer or agent
from any applicable securities registration requirement in
Delaware;
(3) The Internet Communication does not involve
either effecting or attempting to effect transactions in
securities in Delaware over the Internet, but is limited to the
dissemination of general information on securites, products
or services; and
(4) In the case of an agent:
(i) the affiliation with the broker-dealer is
prominently disclosed within the Internet Communication;
(ii) the broker-dealer with whom the agent is
associated retains responsibility for reviewing and
approving the content of any Internet Communication by the
agent;
(iii) the broker-dealer or investment adviser
with whom the agent is associated first authorizes the
distribution of information on the securities, products or
services through the Internet Communication; and
(iv) in disseminating information through the
Internet Communication, the agent acts within the scope of
the authority granted by the broker-dealer;
(b) The position expressed in this rule extends to state
broker-dealer and agent registration requirements only, and
does not excuse compliance with applicable securities
registration, antifraud or related provisions;
(c) Nothing in this rule shall be construed to affect the
activities of any broker-dealer and agent engaged in
business in this state that is not subject to the jurisdiction of
the Commissioner as a result of the National Securities
Markets Improvement Act of 1996, as amended.
See 1 DE Reg 1978 (6/1/98)
§608 Registration Exemption for Certain Canadian
Broker-Dealers
(a) A Canadian broker-dealer which meets the
conditions of this rule as set forth below shall be exempt
from the registration requirement of Section 7313 of the Act.
(b) To be eligible for this exemption, the broker-dealer
must be resident in Canada, have no office or other physical
presence in Delaware, and comply with the following
conditions:
(1) Only effects or attempts to effect transactions
in securities with, or for, one or more of the following;
(i) A person from Canada who is temporarily
present in Delaware, with whom the Canadian broker-dealer
had a bona fide business-client relationship before the person
entered Delaware;
(ii) A person from Canada who is present in
Delaware, whose transactions are in a self-directed tax
advantaged retirement plan in Canada of which the person is
the holder or contributor; or
(iii) A "U.S. institutional investor" or a "major
U.S. institutional investor" to the extent permitted by SEC
Reg. §240.15a-6 (17 CFR §240.15a-6)As otherwise
permitted by the act; and
(2) Is registered in its home province or territory,
and a member in good standing of a self-regulatory
organization or stock exchange in Canada;
(3) Files with the Securities Commissioner a
notice in the form of the current application required by the
jurisdiction in which its head office is located;
(4) Files with the Securities Commissioner a
consent to service of process in a form which complies with
the requirements of Section 7327 of the Act.
(5) Discloses to its clients in Delaware that it is not
subject to the full regulatory requirements of the Act; and
(6) Is not in violation of Sections 7303 or 7316 of
the Act or any rules promulgated thereunder.
(c) Exempt transactions. Offers or sales of any security
effected by a broker-dealer who is exempt from registration
under this Regulation are exempt from the registration
requirements of Section 7304 of the Act and the filing
requirements of Section 7312 of the Act.
(d) Agent exemption: An agent who represents a
Canadian broker-dealer who is exempt from registration
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
464 PROPOSED REGULATIONS
under this Regulation is also exempt from the registration
requirement of Section 7313 of the Act, provided such agent
maintains his or her provincial or territorial registration in
good standing.
(e) Denial, Suspension or Revocation. The
Commissioner may by order deny, suspend, or revoke the
exemption of a particular Canadian broker-dealer provided
pursuant to Rule 608 if he finds that the order is in the public
interest and that the Canadian broker-dealer (or any partner,
officer, director, or any person occupying a similar status or
performing similar functions, or any person directly or
indirectly, controlling the broker-dealker) has done anything
prohibited by Section 7316(a)(1) to (8),(12) or (13).
§609 Dishonest or Unethical Practices
(a) Each broker-dealer and broker-dealer agent
registered in Delaware is required to observe high standards
of commercial honor and just and equitable principles of
trade in the conduct of their business. The acts and practices
described below in this rule, among others, are considered
contrary to such standards and may constitute grounds for
denial, suspension or revocation of registration or such other
action authorized by the Act.
(b) Broker-Dealers. For the purposes of 6 Del. C.
§7316(a)(7), dishonest or unethical practices by a
broker-dealer shall include, but not be limited to, the
following conduct:
(1) Engaging in an unreasonable and unjustifiable
delay in the delivery of securities purchased by any of its
customers or in the payment, upon request, of free credit
balances reflecting completed transactions of any of its
customers, or failing to notify customers of their right to
receive possession of any certificate of ownership to which
they are entitled;
(2) Inducing trading in a customer's account that is
excessive in size or frequency in view of the customer's
investment objective, level of sophistication in investments,
and financial situation and needs;
(3) Recommending a transaction without
reasonable grounds to believe that such transaction is
suitable for the customer in light of the customer's
investment objective, level of sophistication in investments,
financial situation and needs, and any other information
material to the investment;
(4) Executing a transaction on behalf of a customer
without prior authorization to do so;
(5) Exercising any discretionary power in effecting
a transaction for a customer's account without first obtaining
written discretionary authority from the customer, unless the
discretionary power relates solely to the time and/or price for
the execution of orders;
(6) Executing any transaction in a margin account
without securing from the customer a properly executed
written margin agreement promptly after the initial
transaction in the account;
(7) Failing to segregate and identify customer's
free securities or securities held in safekeeping;
(8) Hypothecating a customer's securities without
having a lien thereon unless the broker-dealer secures from
the customer a properly executed written consent promptly
after the initial transaction, except as permitted by SEC
regulations;
(9) Entering into a transaction with or for a
customer at a price not reasonably related to the current
market price of the security or receiving an unreasonable
commission or profit (commissions or profits equal to 10%
or more of the price of a security are presumed to be
unreasonable);
(10) Failing to furnish to a customer purchasing
securities in an offering, no later than the date of
confirmation of the transaction, either a final prospectus or a
preliminary prospectus and an additional document, which,
together with the preliminary prospectus, includes all
information set forth in the final prospectus;
(11) Charging unreasonable and inequitable
fees for services performed, including miscellaneous
services such as collection of monies due for principal,
dividends or interest, exchange or transfer of securities,
appraisals, safekeeping, or custody of securities and other
services related to its securities business;
(12) Charging any fee for which no notice is
given to the customer, and consent obtained, prior to the
event incurring the fee;
(13) Offering to buy from or sell to any person
any security at a stated price, unless such broker-dealer is
prepared to purchase or sell, as the case may be, at such
price and under such conditions as are stated at the time of
such offer to buy or sell;
(14) Representing that a security is being
offered to a customer "at the market" or a price relevant to
the market price, unless such broker-dealer knows or has
reasonable grounds to believe that a market for such security
exists other than that made, created or controlled by such
broker-dealer, or by any person for whom he is acting or
with whom he is associated in such distribution, or any
person controlled by, controlling or under common control
with such broker-dealer;
(15) Effecting any transaction in, or inducing
the purchase or sale of, any security by means of any
manipulative or deceptive device, practice, plan, program,
design or contrivance, that may include but not be limited to:
(i) Effecting any transaction in a security that
involves no change in the beneficial ownership thereof;
(ii) Entering an order or orders for the
purchase or sale of any security with the knowledge that an
order or orders of substantially the same size, at
substantially the same time and substantially the same price,
for the sale of any such security, has been or will be entered
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 465
by or for the same or different parties for the purpose of
creating a false or misleading appearance of active trading in
the security or false or misleading appearance with respect
to the market for the security; provided, however, nothing in
this subparagraph shall prohibit a broker-dealer from
entering bona fide agency cross transactions for its
customers; or
(iii) Effecting, alone or with one or more other
persons, a series of transactions in any security creating
actual or apparent active trading in such security or raising
or depressing the price of such security for the purpose of
inducing the purchase or sale of such security by others;
(16) Guaranteeing a customer against loss in
any securities account of such customer carried by the
broker-dealer or in any securities transaction effected by the
broker-dealer with or for such customer;
(17) Publishing or circulating or causing to be
published or circulated, any notice, circular, advertisement,
newspaper article, investment service, or communication of
any kind that purports to report any transaction as a purchase
or sale of any security, unless such broker-dealer believes
that such transaction was a bona fide purchase or sale of
such security; or that purports to quote the bid price or asked
price for any security, unless such broker-dealer believes that
such quotation represents a bona-fide bid for, or offer of,
such security;
(18) Using any advertising or sales presentation
in such a fashion as to be deceptive or misleading. An
example of such practice would be a distribution of any
nonfactual data, material, or presentation based on
conjecture, unfounded or unrealistic claims or assertions in
a brochure, flyer, or display by words, pictures, graphs or
otherwise designed to supplement, detract from, supersede
or defeat the purpose or effect of any prospectus or
disclosure;
(19) Failing to disclose that the broker-dealer is
controlled by, controlling, affiliated with or under common
control with the issuer of any security before entering into
any contract with or for a customer for the purchase or sale
of such security, and, if such disclosure is not made in
writing, it shall be supplemented by the giving or sending of
written disclosure at or before the completion of the
transaction;
(20) Failing to make a bona fide public offering
of all the securities allotted to a broker-dealer for
distribution, whether acquired as an underwriter or a selling
group member, or from a member participating in the
distribution as an underwriter or selling group member;
(21) Failing or refusing to furnish a customer,
upon reasonable request, information to which he is entitled,
including:
(i) with respect to a security recommended by
the broker-dealer, material information that is reasonably
available; and
(ii) a written response to any written request
or complaint;
(22) Making a recommendation that one
customer buy a particular security and that another customer
sell that security, where the broker-dealer acts as a principal
and such recommendations are made within a reasonably
contemporaneous time period, unless individual suitability
considerations or preferences justify the different
recommendations;
(23) Where the broker-dealer holds itself out as
a market maker in a particular security, or publicly quotes
bid prices in a particular security, failing to buy that security
from a customer promptly upon the customer's request to
sell;
(24) Recommending a security to its customers
without conducting a reasonable inquiry into the risks of
that investment or communicating those risks to its agents
and its customers in a reasonably detailed manner and with
such emphasis as is necessary to make the disclosure
meaningful;
(25) Representing itself as a financial or
investment planner, consultant, or adviser, when the
representation does not fairly describe the nature of the
services offered, the qualifications of the person offering the
services, and the method of compensation for the services;
(26) Falsifying any record or document or
failing to create or maintain any required record or
documents;
(27) Violating any ethical standard in the
conduct rules promulgated by the National Association of
Securities Dealers; or
(28) Aiding or abetting any of the conduct
listed above.
(c) Broker-Dealer Agents and Issuer Agents. For the
purposes of 6 Del. C. §7316(a)(7), dishonest or unethical
practices by a broker-dealer agent or an issuer agent shall
include, but not be limited to, the following conduct:
(1) Engaging in the practice of lending or
borrowing money or securities from a customer, or acting as
a custodian for money, securities or an executed stock
power of a customer;
(2) Effecting securities transactions not recorded
on the regular books or records of the broker-dealer that the
agent represents, unless the transactions are authorized in
writing by the broker-dealer prior to execution of the
transaction;
(3) Establishing or maintaining an account
containing fictitious information in order to execute
transactions that would otherwise be prohibited;
(4) Sharing directly or indirectly in profits or
losses in the account of any customer without the written
authorization of the customer and the broker-dealer that the
agent represents;
(5) Dividing or otherwise splitting the agent's
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
466 PROPOSED REGULATIONS
commissions, profits or other compensation from the
purchase or sale of securities with any person not also
registered as an agent for the same broker-dealer or for a
broker-dealer under direct or indirect common control;
(6) Where a recommendation is made that an
unsophisticated customer purchase an over-the-counter
security that (A) trades sporadically or in small volume, and
(B) is not traded on any United States securities exchange
(excluding the Spokane Exchange) or on the NASDAQ
National Market System, failing to inform the customer that
he may not be able to find a buyer if the customer would
subsequently want to sell the security;
(7) Where a recommendation is made to purchase
an over-the-counter security in which the asked price is
greater than the bid by 25 percent or more, failing to inform
the customer of the bid and the asked prices and of the
significance of the spread between them should the
customer wish to resell the security;
(8) Using excessively aggressive or high pressure
sales tactics, such as repeatedly telephoning and offering
securities to individuals who have expressed disinterest and
have requested that the calls cease, or using profane or
abusive language, or calling prospective customers at home
at an unreasonable hour at night or in the morning;
(9) Conducting or facilitating securities
transactions outside the scope of the agent's relationship
with his broker-dealer employer unless he has provided
prompt written notice to his employer;
(10) Acting or registering as an agent of more
than one broker-dealer without giving written notification to
and receiving written permission from all such
broker-dealers; or
(11) Holding himself out as an objective
investment adviser or financial consultant without fully
disclosing his financial interest in a recommended securities
transaction at the time the recommendation is made;
(12) Engaging in any of the conduct specified
in subparagraph (b) above; or
(13) Aiding or abetting any of the conduct
listed above.
(d) Prohibited practices in connection with investment
company shares. For purposes of 6 Del. C. §7316(a)(7),
unethical practices by a broker-dealer, broker-dealer agent or
issuer agent shall include, but not be limited to, the following
conduct:
(1) In connection with the offer or sale of
investment company shares, failing to adequately disclose
to a customer all sales charges, including asset based and
contingent deferred sales charges, which may be imposed
with respect to the purchase, retention or redemption of such
shares;
(2) In connection with the offer or sale of
investment company shares, stating or implying to a
customer, either orally or in writing, that the shares are sold
without a commission, are "no load" or have "no sales
charge" if there is associated with the purchase of the shares
a front-end loan, a contingent deferred sales load, a SEC
Rule 12 b-1 fee or a service fee which exceeds.25 percent of
average net fund assets per year, or in the case of closed-end
investment company shares, underwriting fees,
commissions or other offering expenses;
(3) In connection with the offer or sale of
investment company shares, failing to disclose to a
customer any relevant sales charge discount on the purchase
of shares in dollar amounts at or above a breakpoint or the
availability of a letter of intent feature which will reduce the
sales charges to the customer;
(4) In connection with the offer or sale of
investment company shares, recommending to a customer
the purchase of a specific class of investment company
shares in connection with a multi-class sales charge or fee
arrangement without reasonable grounds to believe that the
sales charge or fee arrangement associated with such class
of shares is suitable and appropriate based on the customer's
investment objectives, financial situation and other securities
holdings, and the associated transaction or other fees;
(5) In connection with the offer or sale of
investment company shares, recommending to a customer
the purchase of investment company shares which results in
the customer simultaneously holding shares in different
investment company portfolios having similar investment
objectives and policies without reasonable grounds to
believe that such recommendation is suitable and appropriate
based on the customer's investment objectives, financial
situation and other securities holdings, and any associated
transaction charges or other fees;
(6) In connection with the offer or sale of
investment company shares, recommending to a customer
the liquidation or redemption of investment company shares
for the purpose of purchasing shares in a different
investment company portfolio having similar investment
objectives and policies without reasonable grounds to
believe that such recommendation is suitable and appropriate
based on the customer's investment objectives, financial
situation and other securities holdings and any associated
transaction charges or other fees;
(7) In connection with the offer or sale of
investment company shares, stating or implying to a
customer, either orally or in writing, the fund's current yield
or income without disclosing the fund's most recent average
annual total return, calculated in a manner prescribed in
SEC Form N-1A, for one, five and ten year periods and fully
explaining the difference between current yield and total
return; provided, however, that if the fund's registration
statement under the Securities Act of 1933 has been in effect
for less than one, five, or ten years, the time during which the
registration statement was in effect shall be substituted for
the periods otherwise prescribed;
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 467
(8) In connection with the offer or sale of
investment company shares, stating or implying to a
customer, either orally or in writing, that the investment
performance of an investment company portfolio is
comparable to that of a savings account, certificate of
deposit or other bank deposit account without disclosing to
the customer that the shares are not insured or otherwise
guaranteed by the FDIC or any other government agency
and the relevant differences regarding risk, guarantees,
fluctuation of principal and/or return, and any other factors
which are necessary to ensure that such comparisons are fair,
complete and not misleading;
(9) In connection with the offer or sale of
investment company shares, stating or implying to a
customer, either orally or in writing, the existence of
insurance, credit quality, guarantees or similar features
regarding securities held, or proposed to be held, in the
investment company's portfolio without disclosing to the
customer other kinds of relevant investment risks, including
but not limited to, interest rate, market, political, liquidity,
or currency exchange risks, which may adversely affect
investment performance and result in loss and/or fluctuation
of principal notwithstanding the creditworthiness of such
portfolio securities;
(10) In connection with the offer or sale of
investment company shares, stating or implying to a
customer, either orally or in writing,
(i) that the purchase of such shares shortly
before an ex-dividend date is advantageous to such customer
unless there are specific, clearly described tax or other
advantages to the customer, or
(ii) that a distribution of long-term capital
gains by an investment company is part of the income yield
from an investment in such shares;
(11) In connection with the offer or sale of
investment company shares, making representations to a
customer, either orally or in writing, that the broker-dealer or
agent knows or has reason to know are based in whole or in
part on information contained in dealer-use-only material
which has not been approved for public distribution; or
(12) Aiding or abetting any of the conduct
listed above.
(13) In connection with the offer or sale of
investment company shares, the delivery of a prospectus
shall not be dispositive that the broker-dealer or agent has
fulfilled the duties set forth in the subparagraphs of this rule.
(e) The conduct set forth above is not exclusive.
Engaging in other conduct such as forgery, embezzlement,
theft, exploitation, nondisclosure, incomplete disclosure or
misstatement of material facts, manipulative or deceptive
practices, or aiding or abetting any unethical practice, shall
be deemed an unethical business practice and shall also be
grounds for denial, suspension or revocation of registration.
See 1 DE Reg 1978 (6/1/98)
§610 Examination Requirement
An individual applying to be registered as a brokerdealer
or a broker-dealer agent under the Act must
successfully complete the Uniform Securities Agent State
Law Examination (Series 63 or 66) administered by the
NASD. The Commissioner may waive the exam
requirement upon good cause shown.
Part G.Investment Advisers and Investment Adviser
Representatives
§700 Registration of Investment Advisors
(a) A person applying for a license as an investment
adviser in Delaware shall make application for such license
on Form ADV (Uniform Application for Investment
Adviser Registration under the Investment Advisers Act of
1940). Amendments to such application shall also be made
on Form ADV.
(b) The applicant shall file the following items with the
Commissioner: (i) the application on Form ADV; (ii) the
fee required by Section 7314 of the Act; (iii) a balance sheet
prepared in accordance with Schedule G of Form ADV; (iv)
a list of all investment adviser representatives employed by
the investment adviser; and (v)proof of compliance with
Rule 710 by filing an Investment Adviser Affidavit available
at http://www.state.de.us/securities or by contacting the
Division of Securities; and (vi) such other information as the
Commissioner may reasonably require.
(c) Registration expires at the end of the calendar year.
Any investment adviser may renew its registration by filing
with the Commissioner an updated Form ADV, together
with the fee required by Section 7314 of the Act and a list of
all investment adviser representatives employed by the
investment adviser.
(d) Every investment adviser must have at least one
investment adviser representative registered with the
Commissioner to obtain or to maintain its license as an
investment adviser. Except for an investment advisor that is
a sole proprietorship or the substantial equivalent, an
investment adviser registered with the Commissioner shall
register with the Commissioner at least one investment
advisor representative.
See 4 DE Reg 510 (9/1/00)
§701 Registration of Investment Adviser
Representatives
(a) A person applying for a license as an investment
adviser representative in Delaware shall make application
for such license on Form U-4 (Uniform Application for
Securities Industry Registration or Transfer). Amendments
to such application shall also be made on Form U-4.
(b) The applicant shall file the following items with the
Commissioner: (i) the application on Form U-4; (ii) the fee
required by Section 7314 of the Act; (iii); proof of
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
468 PROPOSED REGULATIONS
compliance with Rule 710 by filing an Investment Adviser
Affidavit available at http://www.state.de.us/securities or by
contacting the Division of Securities; and iv) such other
information as the Commissioner may reasonably require.
(c) Registration expires at the end of the calendar year.
Any investment adviser may renew its registration by filing
with the Commissioner a letter of intent to renew and the fee
required by Section 7314 of the Act.
See 4 DE Reg 510 (9/1/00)
§702 Notice Filing Requirements for Federal Covered
Advisers
(a) The notice filing for a federal covered adviser
pursuant to 6 Del. C. §7314 shall be filed with the
Commissioner on an executed Form ADV (Uniform
Application for Investment Adviser Registration (17 C.F.R.
§279)) and shall include the fee required by Sec. 7314 of
the Act. A notice filing shall be effective from its receipt by
the Commissioner until the next December 31st.
(b) The renewal of the notice filing for a federal
covered adviser pursuant to Section 7314(b) of the Act shall
be filed prior to December 31st upon Schedule I to Form
ADV, and shall contain the fee required by Section 7314(c)
of the Act. A renewal filing under this rule shall take effect
upon the expiration of the filing being renewed.
See 1DE Reg 1978 (6/1/98)
§703 Continuing Obligation of Registrants and Notice
Filers to Keep Information Correct
(a) Persons registering as investment advisers or
investment adviser representatives are required to keep
reasonably current the information set forth in their
applications for registration and to notify the Commissioner
of any material change to any information reported in their
applications for registration.
(b) A federal covered adviser who has made a notice
filing under the Act shall file with the Commissioner a copy
of any amendment to its Form ADV or any schedule thereto
as and when such amendment is filed with the SEC. Failure
to keep current the information set forth in an application or
to notify the Commissioner of any material change to any
information reported in the application shall constitute a
waiver of any objection to or claim regarding any action
taken by the Commissioner in reliance on information
currently on file with the Commissioner.
See 1 DE Reg 1978 (6/1/98)
§704 Minimum Financial Requirements for
Investment Advisers
(a) Except as otherwise provided in subsection (c) of
this Rule, unless an investment adviser posts a bond
pursuant to Rule 705, an investment adviser registered or
required to be registered under the Act who has custody of
client funds or securities shall maintain at all times a
minimum net worth of $35,000, every investment adviser
registered or required to be registered under the Act who has
discretionary authority over client funds or securities but
does not have custody of client funds or securities, shall
maintain at all times a minimum net worth of $10,000.
(b) Unless otherwise exempted, as a condition of the
right to continue to transact business in this state, every
investment adviser registered or required to be registered
under the Act whose total net worth falls below the
minimum required shall notify the Commissioner by the
close of business on the next day of such net worth
deficiency. After transmitting such notice, each investment
adviser shall, by the close of business on the next business
day, file a report with the Commissioner of its financial
condition, including the following:
(1) A trial balance of all ledger accounts;
(2) A statement of all client funds, securities or
assets which are not segregated;
(3) A computation of the aggregate amount of
client ledger debit balances; and
(4) A statement as to the number of client
accounts.
(c) For purposes of this Rule, the term "net worth" shall
mean the excess of assets over liabilities, as determined by
generally accepted accounting principles, but shall not
include as assets: prepaid expenses (except as to items
properly classified as current assets under generally
accepted accounting principles), deferred charges, goodwill,
franchise rights, organizational expenses, patents,
copyrights, marketing rights, unamortized debt discount and
expense, any asset of intangible nature, home, home
furnishings, automobile(s), any personal item not readily
marketable (in the case of an individual), advances or loans
to stockholders and officers (in the case of a corporation),
and advances or loans to partners (in the case of a
partnership). For purposes of this Rule, the term "net
capital" in Section 222(c) of the Investment Advisers Act of
1940 shall have the same meaning as "net worth" as defined
in this subsection.
(d) The Commissioner may require that a current
appraisal be submitted in order to establish the worth of any
asset.
(e) Every investment adviser that has its principal place
of business in a state other than this state shall maintain such
minimum capital as required by the state in which the
investment adviser maintains its principal place of business,
provided the investment adviser is licensed in such state and
is in compliance with such state's minimum capital
requirements.
See 1 DE Reg 1978(6/1/98)
§705 Bonding Requirements of Certain Investment
Advisers
(a) Any bond required by this rule shall be issued by a
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 469
company qualified to do business in this state in the form
determined by the Commissioner and shall be subject to the
claims of all clients of the investment adviser regardless of
the client's state of residence. "Assets under management"
for purposes of this rule shall mean the assets under
management as disclosed on the adviser's current Form
ADV or any schedule or supplement thereto filed with the
Commissioner.
(b) Every investment adviser having custody of or
discretionary authority over client funds or securities shall
be bonded in an amount of not less than $35,000 by a
bonding company qualified to do business in Delaware. The
requirements of this Rule shall not apply to those applicants
or registrants who comply with the requirements of Rule
704.
(c) An investment adviser that has its principal place of
business in a state other than Delaware shall be exempt from
the requirements of subsection (a) of this section, provided
that the investment adviser is registered as an investment
adviser in the state where it has its principal place of
business and is in compliance with such state's requirements
relating to bonding.
See 1 DE Reg 1978 (6/1/98)
§706 Record keeping Requirements of Investment
Advisers
(a) Every investment adviser registered or required to
be registered under this Act shall make and keep true,
accurate and current the following books, ledgers and
records:
(1) A journal or journals, including cash receipts
and disbursements records, and any other records of original
entry forming the basis of entries in any ledger.
(2) General and auxiliary ledgers (or other
comparable records) reflecting asset, liability, reserve,
capital, income and expense accounts.
(3) A memorandum of each order given by the
investment adviser for the purchase or sale of any security,
of any instruction received by the investment adviser from
the client concerning the purchase, sale, receipt or delivery
of a particular security, and of any modification or
cancellation of any such order or instruction. Such
memoranda shall show the terms and conditions of the
order, instruction, modification or cancellation; shall identify
the person connected with the investment adviser who
recommended the transaction to the client and the person
who placed such order; and shall show the account for
which entered, the date of entry, and the bank or
broker-dealer by or through whom executed where
appropriate. Orders entered pursuant to the exercise of
discretionary power shall be so designated.
(4) All check books, bank statements, cancelled
checks and cash reconciliations of the investment adviser.
(5) All bills or statements (or copies thereof) paid
or unpaid, relating to the business of the investment adviser
as such.
(6) All trial balances, financial statements, and
internal audit working papers relating to the business of
such investment adviser.
(7) Originals of all written communications
received and copies of all written communications sent by
such investment adviser relating to: (i) Any
recommendation made or proposed to be made and any
advice given or proposed to be given; (ii) any receipt,
disbursement or delivery of funds or securities; or (iii) the
placing or execution of any order to purchase or sell any
security, provided, however: (A) that the investment adviser
shall not be required to keep any unsolicited market letters
and other similar communications of general public
distribution not prepared by or for the investment adviser,
and (B) that if the investment adviser sends any notice,
circular or other advertisement offering any report, analysis,
publication or other investment advisory service to more
than 10 persons, the investment adviser shall not be required
to keep a record of the names and addresses of the persons
to whom it was sent; except that if such notice, circular or
advertisement is distributed to persons named on any list, the
investment adviser shall retain with the copy of such notice,
circular or advertisement a memorandum describing the list
and the source thereof.
(8) A list or other record of all accounts in which
the investment adviser is vested with any discretionary
power with respect to the funds, securities or transactions of
any client.
(9) All powers of attorney and other evidences of
the granting of any discretionary authority by any client to
the investment adviser, or copies thereof.
(10) All written agreements (or copies thereof)
entered into by the investment adviser with any client or
otherwise relating to the business of such investment adviser
as such.
(11) A copy of each notice, circular,
advertisement, newspaper article, investment letter, bulletin
or other communication recommending the purchase or sale
of a specific security, which the investment adviser
circulates or distributes, directly or indirectly, to 10 or more
persons (other than clients receiving investment supervisory
services or persons connected with such investment
adviser), and if such notice, circular, advertisement,
newspaper article, investment letter, bulletin or other
communication does not state the reasons for such
recommendation, a memorandum of the investment adviser
indicating the reasons therefor.
(12)(i) A record of every transaction in a security
in which the investment adviser or any advisory
representative of such investment adviser has, or by reason
of such transaction acquires, any direct or indirect beneficial
ownership, except: (A) transactions effected in any account
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
470 PROPOSED REGULATIONS
over which neither the investment adviser nor any advisory
representative of the investment adviser has any direct or
indirect influence or control; and (B) transactions in
securities which are direct obligations of the United States.
Such record shall state the title and amount of the security
involved; the date and nature of the transaction (i.e.,
purchase, sale or other acquisition or disposition); the price
at which it was effected; and the name of the broker-dealer
or bank with or through whom the transaction was effected.
Such record may also contain a statement declaring that the
reporting or recording or any such transaction shall not be
construed as an admission that the investment adviser or
advisory representative has any direct or indirect beneficial
ownership in the security. A transaction shall be recorded
not later than 10 days after the end of the calendar quarter in
which the transaction was effected.
(ii) For purposes of this subdivision (12) the term
"advisory representative" shall mean any partner, officer or
director of the investment adviser, any employee who makes
any recommendation, who participates in the determination
of which recommendation shall be made, or whose
functions or duties relate to the determination of which
recommendation shall be made; any employee who, in
connection with his duties, obtains any information
concerning which securities are being recommended prior to
the effective dissemination of such recommendations or of
the information concerning such recommendations; and any
of the following persons who obtain information concerning
securities recommendations being made by such investment
adviser prior to the effective dissemination of such
recommendations or of the information concerning such
recommendations: (A) any person in a control relationship
to the investment adviser; (B) any affiliated person of such
controlling person; and (C) any affiliated person of such
affiliated person. "Control" shall have the same meaning as
that set forth in Section 2(a)(9) of the Investment Company
Act of 1940, as amended. (iii) An investment adviser shall
not be deemed to have violated the provisions of this
subparagraph because of his failure to record securities
transactions of any investment adviser representative if he
establishes that he instituted adequate procedures and used
reasonable diligence to obtain promptly reports of all
transactions required to be recorded.
(13)(i) Notwithstanding the provisions of
subdivision (12) above, where the investment adviser is
primarily engaged in a business or businesses other than
advising registered investment companies or other advisory
clients, a record must be maintained of every transaction in a
security in which the investment adviser or any advisory
representative of such investment adviser has, or by reason
of such transaction requires, any direct or indirect beneficial
ownership, except: (A) transactions effected in any account
over which neither the investment adviser nor any advisory
representative of the investment adviser has any direct or
indirect influence or control; and (B) transactions in
securities which are direct obligations of the United States.
Such record shall state the title and amount of the security
involved; the date and nature of the transaction (i.e.,
purchase, sale or other acquisition or disposition); the price
at which it was effected; and the name of the broker-dealer
or bank with or through whom the transaction was effected.
Such record may also contain a statement declaring that the
reporting or recording of any such transaction shall not be
construed as an admission that the investment adviser or
advisory representative has any direct or indirect beneficial
ownership in the security. A transaction shall be recorded
not later than 10 days after the end of the calendar quarter in
which the transaction was effected.
(ii) An investment adviser is "primarily engaged in
a business or businesses other than advising registered
investment companies or other advisory clients" when, for
each of its most recent three fiscal years or for the period of
time since organization, whichever is lesser, the investment
adviser derived, on an unconsolidated basis, more than 50%
of (1) its total sales and revenues, and (2) its income (or loss)
before income taxes and extraordinary items, from such
other business or businesses.
(iii) For purposes of this subdivision (13) the term
"advisory representative", when used in connection with a
company primarily engaged in a business or businesses
other than advising registered investment companies or
other advisory clients, shall mean any partner, officer,
director or employee of the investment adviser who makes
any recommendation, who participates in the determination
of which recommendation shall be made, or who, in
connection with his duties, obtains any information
concerning which securities are being recommended prior to
the effective dissemination of such recommendations or of
the information concerning such recommendations; and any
of the following persons who obtain information concerning
securities recommendations being made by such investment
adviser prior to the effective dissemination of such
recommendations or of the information concerning such
recommendations: (A) any person in a control relationship to
the investment adviser; (B) any affiliated person of such
controlling person; and (C) any affiliated person of such
affiliated person. "Control" shall have the same meaning as
that set forth in Section 2(a)(9) of the Investment Company
Act of 1940, as amended.
(iv) An investment adviser shall not be deemed to
have violated the provisions of this subdivision (13) because
of his failure to record securities transactions of any
advisory representative if he establishes that he instituted
adequate procedures and used reasonable diligence to obtain
promptly reports of all transactions required to be recorded.
(14) A copy of each written statement and each
amendment or revision thereof, given or sent to any client or
prospective client of such investment adviser in accordance
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 471
with the provisions of Rule 709(a)(16), and a record of the
dates that each written statement, and each amendment or
revision thereof, was given, or offered to be given, to any
client or prospective client who subsequently becomes a
client.
(b) If an investment adviser subject to subsection (a) of
this Rule has custody or possession of securities or funds on
any client, the records required to be made and kept under
subsection (a) above shall also include: (1) a journal or
other record showing all purchases, sales, receipts and
deliveries of securities (including certificate numbers) for
such accounts and all other debits and credits to such
accounts; (2) a separate ledger account for each such client
showing all purchases, sales, receipts and deliveries of
securities, the date and price of each such purchase and sale,
and all debits and credits; (3) copies of confirmations of all
transactions effected by or for the account of any such
client; and (4) a record for each security in which any such
client has a position, which record shall show the name of
each such client having any interest in each security, the
amount of interest of each such client, and the location of
each such security.
(c) Every investment adviser subject to subsection (a)
of this Rule who renders any investment supervisory or
management service to any client shall, with respect to the
portfolio being supervised or managed and to the extent that
the information is reasonably available to or obtainable by
the investment adviser, make and keep true, accurate and
current: (1) records showing separately for each such client
the securities purchased and sold, and the date, amount and
price of each such purchase and sale; and (2) for each
security in which any such client has a current position,
information from which the investment adviser can
promptly furnish the name of each such client, and the
current amount or interest of such client.
(d) Any books or records required by this Rule may be
maintained by the investment adviser in such manner that
the identity of any client to whom such investment adviser
renders investment advisory services is indicated by
numerical or alphabetical code or some similar designation.
(e) (1) All books and records required to be made
under the provisions of subsections (a) to (c), inclusive, of
this Rule shall be maintained and preserved in an easily
accessible place for a period of not less than five years from
the end of the fiscal year during which the last entry was
made on such record, the first two years in an appropriate
office of the investment adviser. (2) Partnership articles and
any amendments thereto, articles of incorporation, charters,
minute books, and stock certificate books of the investment
adviser and of any predecessor, shall be maintained in the
principal office of the investment adviser and preserved
until at least three years after termination of the enterprise.
(f) An investment adviser subject to subsection (a) of
this Rule, before ceasing to conduct or discontinuing
business as an investment adviser shall arrange for and be
responsible for the preservation of the books and records
required to be maintained and preserved under this Rule, and
shall notify the Commissioner in writing of the exact
address where such books and records will be maintained
during such period.
(g) (1) The records required to be maintained and
preserved pursuant to this Rule may be immediately
produced or reproduced by photograph on film or, as
provided in paragraph (g)(2) below, on magnetic disk, tape
or other computer storage medium, and be maintained and
preserved for the required time in that form. If records are
produced or reproduced by photographic film or computer
storage medium, the investment adviser shall: (i) arrange the
records and index the films or computer storage medium so
as to permit the immediate location of any particular record;
(ii) be ready at all times to provide, and promptly provide,
any facsimile enlargement of film or computer printout or
copy of the computer storage medium the Commissioner by
its examiners or other representatives may request; (iii) store
separately from the original one other copy of the film or
computer storage medium for the time required; (iv) with
respect to records stored on computer storage medium,
maintain procedures for maintenance and preservation of,
and access to, records so as to reasonable safeguard records
from loss, alteration, or destruction; and (v) with respect to
records stored on photographic film, at all times have
available for the Commissioner's examination of its records
pursuant to section 7315(e) of the Act, facilities for
immediate, easily readable projection of the film and for
producing easily readable facsimile enlargements.
(2) Pursuant to this paragraph (g) an adviser may
maintain and preserve on computer tape or disk or other
computer storage medium records which, in the ordinary
course of the adviser's business, are created by the adviser
on electronic media or are received by the adviser solely on
electronic media or by electronic data transmission.
(h) For purposes of this rule "investment supervisory
services" means the giving of continuous advice as to the
investment of funds on the basis of the individual needs of
each client.
(i) Every investment adviser that has its principal place
of business in a state other than Delaware shall be exempt
from the requirements of this section, provided the
investment adviser is licensed in such state and is in
compliance with the state's record keeping requirements.
See 1 DE Reg 1978 (6/1/98)
§707 Use of the Internet for General Dissemination of
Information on Products and Services
(a) Investment advisers and investment adviser
representatives who use the Internet to distribute
information on available products and services through
communications made on the Internet directed generally to
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
472 PROPOSED REGULATIONS
anyone having access to the Internet, and transmitted
through postings on "Bulletin Boards", displays on "Home
Pages" or otherwise (an "Internet Communication") shall not
be deemed to be "transacting business" in Delaware for
purposes of Section 7313 of the Act based solely on the
Internet Communication if the following conditions are met:
(1) The Internet Communication contains a legend
in which it is clearly stated that:
(i) The investment adviser or representative
in question may only transact business in a state requiring
registration if first registered, excluded or exempted from
state investment adviser or representative registration
requirement, as the case may be; and
(ii) follow-up individualized responses to
persons in Delaware by such investment adviser or
representative that involve the rendering of personalized
investment advice for compensation will not be made absent
compliance with state investment adviser or representative
registration requirements, or an applicable exemption or
exclusion;
(2) The Internet Communication contains a
mechanism, including and without limitation, technical
"firewalls" or other implemented policies and procedures,
designed reasonably to ensure that prior to any subsequent,
direct communication with prospective customers or clients
in this state, said investment adviser or representative is first
registered in Delaware or qualifies for an exemption or
exclusion from such requirement. Nothing in this paragraph
shall be construed to relieve a state registered investment
adviser or representative from any applicable securities
registration requirement in Delaware;
(3) The Internet Communication does not involve
the rendering of personalized advice for compensation in
Delaware over the Internet, but is limited to the
dissemination of general information on products and
services; and
(4) In the case of a representative:
(i) the affiliation with the investment adviser
is prominently disclosed within the Internet
Communication;
(ii) the investment adviser with whom the
representative is associated retains responsibility for
reviewing and approving the content of any Internet
Communication by the representative;
(iii) the investment adviser with whom the
representative is associated first authorizes the distribution
of information on the particular products and services
through the Internet Communication; and
(iv) in disseminating information through the
Internet Communication, the representative acts within the
scope of the authority granted by the investment adviser;
(b) The position expressed in this rule extends to state
investment adviser and representative registration
requirements only, and does not excuse compliance with
applicable securities registration, antifraud or related
provisions;
(c) Nothing in this rule shall be construed to affect the
activities of any investment adviser and representative
engaged in business in Delaware that is not subject to the
jurisdiction of the Commissioner as a result of the National
Securities Markets Improvements Act of 1996, as amended.
See 1 DE Reg 1978 (6/1/98)
§708 Custody of Client Funds or Securities
It is unlawful for an investment adviser to take or have
custody of any securities or funds of any client unless:
(a) The investment adviser notifies the
Commissioner in writing that the investment adviser has or
may have custody;
(b) The securities of each client are segregated,
marked to identify the particular client having the beneficial
interest in those securities, and held in safekeeping in a
place reasonably free from risk of destruction or other loss;
(c) All client funds are deposited as follows:
(1) In one or more bank accounts containing
only clients' funds;
(2) The account or accounts are maintained in
the name of the investment adviser as agent or trustee for the
clients; and
(3) The investment adviser maintains a
separate record for each account showing the name and
address of the bank where the account is maintained, the
dates and amounts of deposits in and withdrawals from the
account, and the exact amount of each client's beneficial
interest in the account;
(d) Immediately after accepting custody or
possession of funds or securities from any client, the
investment adviser notifies the client in writing of the place
and manner in which the funds and securities will be
maintained and subsequently, if or when there is a change in
the place or the manner in which the funds or securities are
maintained, the investment adviser gives written notice to
the client;
(e) At least once every 3 months, the investment
adviser sends to each client an itemized statement showing
the client's funds and securities in the investment adviser's
custody at the end of the period, and all debits, credits and
transactions in the client's account during that period; and
(f) At least once every calendar year, an
independent certified public accountant or public accountant
verifies all client funds and securities by an actual
examination, which shall be made at a time chosen by the
accountant without prior notice to the investment adviser. A
report stating that the accountant has made an examination
of the client funds and securities in the custody of the
investment adviser, and describing the nature and extent of
the examination, shall be filed with the Commissioner
within 30 days after each examination.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 473
§709 Dishonest or Unethical Practices
(a) A person who is an investment adviser, a federal
covered adviser, or an investment adviser representative is a
fiduciary and has a duty to act primarily for the benefit of
the client. While the extent and nature of this duty varies
according to the nature of the relationship with the client
and the circumstances of each case, no investment adviser,
federal covered adviser or representative shall engage in any
dishonest or unethical business practice. The provisions of
this section apply to federal covered advisers only to the
extent permitted by the National Securities Markets
Improvement Act of 1996 (Pub. L. No. 104-290). For
purposes of §7316(a)(7) of the Act, the term "dishonest or
unethical practices" shall include but not be limited to the
following:
(1) Recommending to a client, to whom investment
supervisory, management or consulting services are
provided, the purchase, sale, or exchange of any security
without reasonable grounds to believe that the
recommendation is suitable for the client on the basis of
information furnished by the client after reasonable inquiry
concerning the client's investment objectives, financial
situation and needs, and any other information known by the
investment adviser.
(2) Exercising any discretionary power in placing an
order for the purchase or sale of securities for a client
without obtaining written discretionary authority from the
client within ten business days after the date of the first
transaction placed pursuant to oral discretionary authority,
unless the discretionary power relates solely to the price at
which, or the time when, an order involving a definite
amount of a specific security that shall be executed, or both.
(3) Inducing trading in a client's account that is
excessive in size or frequency in view of the client's
financial resources and investment objectives and the
character of the account.
(4) Placing an order to purchase or sell a security for
the account of a client without authority to do so.
(5) Placing an order to purchase or sell a security for
the account of a client upon instruction of a third party
without first having obtained a written third party trading
authorization from the client.
(6) Borrowing money or securities from a client, unless
the client is a broker-dealer, an affiliate of the investment
adviser, or a financial institution engaged in the business of
loaning funds.
(7) Extending arranging for, or participating in
arranging for credit to a customer in violation of the
provisions of Regulation T promulgated by the Federal
Reserve Board, 12 C.F.R. §§220.1-220.131.
(8) To misrepresent to any advisory client, or
prospective advisory client, the qualifications of the
investment adviser or any employee of the investment
adviser, or to misrepresent the nature of the advisory services
being offered or fees to be charged for such service, or to
omit to state a material fact necessary to make the
statements made regarding qualifications, services, or fees,
in light of the circumstances under which they are made, not
misleading.
(9) Providing a report or recommendation prepared by
someone other than the adviser to any advisory client
prepared by someone other than the adviser without
disclosing the fact; provided, however, that this prohibition
does not apply to a situation where the adviser uses
published research reports or statistical analyses to render
advice or where an adviser orders such a report in the normal
course of providing service.
(10) Charging a client an advisory fee that is
unreasonable in light of the type of services to be provided,
the experience and expertise of the adviser, the
sophistication and bargaining power of the client, and
whether the adviser has disclosed that lower fees for
comparable services may be available from other sources.
(11) Failing to disclose to clients, in writing, before
any advice is rendered, any material conflict of interest
relating to the adviser or any of its employees which could
reasonably be expected to impair the rendering of unbiased
and objective advice, including:
(i) Compensation arrangements connected with
advisory services which are in addition to compensation
from such clients for such services; and
(ii) Charging a client an advisory fee for rendering
advice when a commission for executing securities
transactions pursuant to such advice will be received by the
adviser or its employees.
(12) Guaranteeing a client that a specific result will
be achieved (gain or no loss) with advice to be rendered.
(13) Publishing, circulating, or distributing any
advertisement which does not comply with Rule 206(4)-1
under the Investment Advisers Act of 1940.
(14) Disclosing the identity, affairs, or investments
of any client, unless required by law to do so, or unless
consented to by the client.
(15) Violating Rule 206(4)-2 under the Investment
Advisers Act of 1940, irrespective of whether such
investment adviser is registered under the Investment
Advisers Act of 1940.
(16) Entering into, extending, or renewing any
investment advisory contract, unless such contract is in
writing and discloses, in substance, the information required
by Part II of Form ADV, the services to be provided, the
term of the contract, the advisory fee, the formula for
computing the fee, the amount of prepaid fee to be returned
in the event of contract termination or non-performance,
whether the contract grants discretionary power to the
adviser, and that no assignment of such contract shall be
made by the investment adviser without the consent of the
other party to the contract. The information required by Part
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
474 PROPOSED REGULATIONS
II of form ADV may be disclosed in a document advisory
contract, so long as it is disclosed at the time the contract is
entered into, extended or renewed.
(17) Failing to establish, maintain, and enforce
written policies and procedures reasonably designed to
prevent the misuse of material nonpublic information in
violation of Section 204A of the Investment Advisors Act of
1940
(18) Entering into, extending, or renewing any
advisory contract which would violate Section 205 of the
Investment Advisers Act of 1940. This provision shall
apply to all advisers registered or required to be registered
under the Delaware Securities Act.
(19) To include in an advisory contract any
condition, stipulation, or provision binding any person to
waive compliance with any applicable provision of the
Delaware Securities Act, any rule promulgated thereunder,
the Investment Advisers Act of 1940, or any rule
promulgated thereunder, or to engage in any other practice
that would violate Section 215 of the Investment Advisers
Act of 1940.
(20) Engaging in any act, practice, or course of
business which is fraudulent, deceptive, or manipulative in
contravention of Section 206(4) of the Investment Advisers
Act of 1940, notwithstanding the fact that such investment
adviser is not registered or required to be registered under
Section 203 of the Investment Advisers Act of 1940.
(21) Engaging in any conduct, indirectly or through
or by any other person, which would be unlawful for such
person to do directly under the provisions of the Delaware
Securities Act or any rule thereunder.
(22) Aiding or abetting any of the conduct listed
above.
(b) The conduct set forth in subparagraph (a) of
this Rule is not exclusive. Engaging in other conduct such as
forgery, embezzlement, theft, exploitation, non-disclosure,
incomplete disclosure or misstatement of material facts,
manipulative or deceptive practices, or aiding or abetting
any unethical practice, shall be deemed an unethical
business practice and shall also be grounds for denial,
suspension or revocation of registration. The federal
statutory and regulatory provisions referenced herein shall
apply to all investment advisers, federal covered advisers
and investment adviser representatives only to the extent
permitted by the National Securities Markets Improvement
Act of 1996 (Pub. L. No. 104-290).
See 1 DE Reg1978 (6/1/98)
§710 Examination Requirements
(a) Examination Requirements. An individual
applying to be registered as an investment adviser or
investment adviser representative under the Act shall
provide the Commissioner with proof of obtaining a passing
score on one of the following examinations:
(1) The Uniform Investment Adviser Law
Examination (Series 65 examination); or
(2) The General Securities Representative
Examination (Series 7 examination) and the Uniform
Combined State Law Examination (Series 66 examination).
(b) Grandfathering.
(1) Any individual who is registered as an
investment adviser or investment adviser representative in
any jurisdiction in the United States on the effective date of
this Rule shall not be required to satisfy the examination
requirements for continued registration, except that the
Commissioner may require additional examinations for any
individual found to have violated any state or federal
securities law.
(2) An individual who has not been registered in
any jurisdiction for a period of two (2) years shall be
required to comply with the examinations requirements for
this Rule.
(c Waivers. The examination shall not apply to an
individual who currently holds one of the following
professional designations:
(1) Certified Financial Planner (CFP) awarded by
the; Certified Financial Planner Board of Standards, Inc.
(2) Chartered Financial Consultant (ChFC)
awarded by the American College, Bryn Mawr,
Pennsylvania;
(3) Personal Financial Specialist (PFS) awarded by
the American Institute of Certified Public Accountants;
(4) Charted Financial Analyst (CFA) awarded by
the Institute of Chartered Financial Analysts;
(5) Chartered Investment Counselor (CIC)
awarded by the Investment Counsel Association of America,
Inc.; or
(6) Such other professional designation as the
Commissioner may by rule or order recognize.
(d) The Commissioner reserves the power to waive the
exam requirements upon good cause shown.
See 4 DE Reg 510 (9/1/00)
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF WATER RESOURCES
Statutory Authority: 7 Delaware Code,
Section 103(a)(1) and (b),
(7 Del.C. 103(a)(1) and (b))
Secretary’s Order No.: 2002-W-0048
Date of Issuance: August 26, 2002
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 475
REGISTER NOTICE
1. Brief Synopsis of the Subject, Substance and Issues
The Department of Natural Resources and
Environmental Control, Division of Water Resources,
Surface Water Discharges Section, held a public hearing on
August 29, 2000 to receive comments on proposed
amendments to the Regulations Governing the Control of
Water Pollution . The proposed amendments and a notice of
the August 29, 2000 public hearing were published in the
Delaware Register of Regulations on July 1, 2000. The
Department responded to the comments entered into the
public hearing record in a Response Document dated March
8, 2002. The Hearing Officer’s Report to the Secretary
recommended adoption of the revisions as discussed in the
Response Document. On August 26, 2002, the Secretary
ordered that the Regulations be amended as proposed with
the revisions outlined in the response document. Under 29
Del C. no agency can adopt a regulation if more than 12
months has elapsed since the end of the public comment
period, therefore these regulations are being published in
their modified form to provide the public an additional
opportunity to submit comments before the amendments are
promulgated in the manner required by law.
2. Possible Terms of the Agency Action:
N/A
3. Statutory Basis or Legal Authority to Act:
7 Del C. Chapter 60
4. List of Other Regulations That May be Impacted or
Affected by the Proposal:
Regulations Governing the Control of Water Pollution
(Amended September 15, 1998)
5. Notice Of Public Comment:
The Department of Natural Resources and Environmental
Control, Division of Water Resources, Surface Water
Discharges Section, held a public hearing on August 29, 2000
to receive comments on proposed amendments to the
Regulations Governing the Control of Water Pollution . The
Department responded to the comments entered into the public
hearing record in a Response Document sent to the Hearing
Officer dated March 8, 2002. In his report, the Hearing
Officer recommended the adoption of the revisions as
discussed in the Response Document. The Department is
publishing the Secretary’s Order and the revised version of the
Regulations Governing the Control of Water Pollution for
public comment before final promulgation of the amendments
in the manner required by law. The public comment period
will remain open until October 31, 2002. Comments should be
sent in writing to Paul Janiga, Surface Water Discharges
Section, Division of Water Resources, DNREC, 89 Kings
Hwy., Dover, DE 19901. Copies of the Department’s
Response Document are available by contacting Paul Janiga at
(302) 739-5731.
I. Background
The Department of Natural Resources and
Environmental Control held a public hearing on August 29,
2000 to receive comments on proposed amendments to the
Department’s Regulations Governing the Control of
Water Pollution. Public notices advertising the hearing
were published in two newspapers, the Delaware State News
and The News Journal, on Wednesday, August 2, 2000, and
on Sunday, August 6, 2000. The proposed amendments and
a notice advertising the August 29, 2000 public hearing were
published in the Delaware Register of Regulations on July
1, 2000.
The majority of the proposed amendments focus on the
Department’s issuance and administration of NPDES
permits in the State of Delaware. Administration of this
program was delegated to the State of Delaware by EPA in
1974. In addition, the Department proposed updates to its
regulations for the construction and operation of wastewater/
pollution control facilities and proposed to adopt regulations
that formalize a periodic assessment of municipal treatment
plant performance and infrastructure needs. Regulations
were also proposed to address administrative procedures for
evaluating and issuing a State certification that an activity
will be conducted in such a manner that won’t violate the
applicable surface water quality criteria or standards. Such
certification is required under federal law for any activity
that involves a federal license or permit.
Prior to the August 29, 2000 public hearing, the
Department conducted a public workshop on Monday,
September 13, 1999. At that workshop, Department staff
outlined and discussed the possible changes to the water
pollution control regulations. The Department staff also met
with a group of interested parties on four separate occasions
in November and December 1999 to review and discuss the
proposed regulatory changes in detail and to answer any
questions the group had. The Department also conducted a
follow-up workshop on January 10, 2000.
After the hearing, the Department performed an
evaluation of the evidence entered into the record in this
matter. Thereafter, the Hearing Officer prepared his report
and recommendation in the form of a Hearing Officer’s
Report to the Secretary dated August 26, 2002, and that
report is expressly incorporated herein by reference.
II. Findings and Conclusions
1. Proper notice of the hearing was provided as
required by law.
2. The Department has carefully considered all
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
476 PROPOSED REGULATIONS
relevant public comments regarding this proposed
rulemaking, and has provided a reasoned analysis and sound
conclusions regarding each one as reflected in the March 8,
2002 Response Document, which is attached and
incorporated into this Order. The reasoning and conclusions
with respect to each issue are hereby incorporated into this
Order as formal findings.
3. This rulemaking, together with the revisions made
as a result of the comment process, will provide a significant
water quality benefit for the State of Delaware, while being
sensitive to the practical implications for the regulated
community.
III. Order
In view of the above findings, it is hereby ordered that
the Regulations Governing the Control of Water
Pollution be amended and promulgated in the manner
required by law to reflect the final version of these
amendments, attached hereto, which includes appropriate
revisions as discussed in the Response Document.
IV. Reasons
This rulemaking represents careful, deliberate and
reasoned action by this agency to address shortcomings in its
existing regulations and to maintain consistency with
evolving Federal requirements, while taking into account the
practical interests and concerns of the regulated community.
Nicholas A. DiPasquale, Secretary
CONSIDERATIONS, THE FULL
IS NOT BEING REPRODUCED
TO THE LENGTH OF THE FINAL
ON
VERSIONS AVAILABLE FROM THE
ION
HTML VERSION
DELAWARE RIVER BASIN
COMMISSION
NOTICE OF PROPOSED RULEMAKING
The Delaware River Basin Commission
("Commission") is a federal-state regional agency charged
with managing the water resources of the Basin without
regard to political boundaries. Its members are the
governors of the four Basin states B New Jersey, New York,
Pennsylvania and Delaware B and a Federal representative
appointed by the President of the United States. The
Commission is not subject to the requirements of 29
Delaware Code Chapter 101. This notice is published by the
Commission for informational purposes
Proposed Amendments to the Comprehensive Plan and
the Water Code
Relating to the Operation of Lake Wallenpaupack
During Drought Watch, Drought Warning and Drought
Conditions
Summary: The Commission will hold a public hearing
to receive comments on proposed amendments to its
Comprehensive Plan and Water Code to incorporate a
revised drought operating plan for the Lake Wallenpaupack
Reservoir and Hydroelectric Facility, currently owned and
operated by PPL Holtwood, LLC ("PPL"). The proposed
rulemaking would increase by 12,500 acre-feet or 4.1 billion
gallons the amount of Lake Wallenpaupack water available
to the Commission for flow augmentation in the main stem
Delaware River during drought watch, drought warning and
drought emergency conditions, as defined in Section 2.5.3 of
the Water Code and Docket D-77-20 CP (Revision 4), dated
April 28, 1999. The minimum lake elevation to be
maintained during drought conditions B the target elevation
for December 1 B would decrease from 1170.0 feet to 1167.5
feet. The right to use as much as 4.1 billion gallons of Lake
Wallenpaupack water to augment Delaware River flows
during drought would be deemed to satisfy up to 10,000
acre-feet of the Commission=s consumptive use replacement
requirement for the Martins Creek and Lower Mount Bethel
generating facilities and future facilities that PPL (or its
successors in interest) might construct. That is, under the
proposed drought plan, the Commission would release PPL
(and its successors) from the requirement that it provide up
to 10,000 acre-feet or 3.3 billion gallons of dedicated storage
to replace, gallon for gallon, water consumptively used by
the entity=s existing and future generating facilities when the
basin is in drought watch, warning or drought operations.
Dates: The public hearing will be held on Wednesday,
October 16, 2002 during the Commission=s regular business
meeting, which will begin at 1:30 p.m. Persons wishing to
testify are asked to register in advance with the Commission
Secretary by phoning 609-883-9500 ext. 203. Written
comments will be accepted through Friday, November 15,
2002. Comments must be received, not merely postmarked,
by that date.
Addresses: The public hearing will be held at the
Commission=s offices, 25 State Police Drive, West Trenton,
NJ. Written comments should be addressed to the
Commission Secretary at DRBC, P.O. Box 7360, West
Trenton, NJ 08628-0360.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 477
Further Information, Contacts: A draft resolution
enacting the proposed amendments to Sections 2.5.5 and
2.5.6 of the Water Code and the text of the current Water
Code (which is incorporated in the Comprehensive Plan)
may be viewed on the Commission=s web site, at http://
www.drbc.net. Please contact Pamela M. Bush ext. 203,
with questions about the proposed rule change or the
rulemaking process.
PAMELA M. BUSH, ESQ.
Commission Secretary
September 18, 2002
Revised 9/11/02
NO. 2002-
A RESOLUTION to amend the Comprehensive Plan
and the Water Code relating to the operation of Lake
Wallenpaupack during drought, drought warning and
drought watch conditions.
WHEREAS, Sections 2.5.3 and 2.5.4 of the Water
Code specify criteria defining "basinwide drought" and
"basinwide drought warning;" and
WHEREAS, Section 2.5.5 of the Water Code specifies
how the Commission may direct operation of Lake
Wallenpaupack during basinwide drought, in accordance
with Table 2 therein, "Lake Wallenpaupack Elevation
Schedule During Drought Conditions" ("Table 2"); and
WHEREAS, Table 2 currently reflects total storage in
Lake Wallenpaupack of 29.8 billion gallons ("bg") available
for drought operation; and
WHEREAS, Section 2.5.6 of the Water Code
establishes criteria defining "lower basin drought" and
"lower basin drought warning," and specifies how the
Commission may direct operation of Lake Wallenpaupack
during lower basin drought in accordance with Table 2; and
WHEREAS, in Docket No. D-77-20 CP (Revised), the
Commission has temporarily modified the criteria defining
basinwide drought warning and has specified criteria
defining "basinwide drought watch;" and
WHEREAS, PPL Holtwood, LLC ("PPL") has
proposed to the Commission that the Water Code be revised
to reflect the availability of an additional 4.1 bg of storage in
Lake Wallenpaupack for basinwide and lower basin drought
operation as directed by the Commission, and for use during
basinwide drought watch, basinwide drought warning and
lower basin drought warning, also as directed by the
Commission, which proposal is herein called the "Proposed
New Drought Operations Plan for Lake Wallenpaupack" (or
"the proposal"); and
WHEREAS, the Commission has developed a daily
flow computer model called OASIS, which PPL has
modified to include Lake Wallenpaupack as an operating
reservoir; and
WHEREAS, PPL submitted to the Commission the
report "Analysis of a New Drought Operations Plan for Lake
Wallenpaupack – Final Report," dated January 2002 ("Final
Report"), which presents the results ofPPL’s analysis of the
Proposed New Drought Operations Plan for Lake
Wallenpaupack using the OASIS model and demonstrates
the benefits of the proposal to the basin; and
WHEREAS, the benefits to the basin set forth in the
Final Report include: reduced drought frequency and
intensity, reduced incidence of cutbacks in conservation,
directed and thermal releases, and reduced incidence of
cutbacks in diversions of Delaware Basin water to New York
City and the State of New Jersey; and
WHEREAS, Lake Wallenpaupack is a component of
PPL’s Lake Wallenpaupack Hydroelectric Project licensed
by the Federal Energy Regulatory Commission ("FERC");
and
WHEREAS, the FERC license for the Lake
Wallenpaupack Hydroelectric Project expires in September
2004, and PPL is preparing an application to the FERC for a
new license, which application must be submitted to FERC
no later than September 30, 2002; and
WHEREAS, PPL’s Martins Creek and Lower Mount
Bethel generating stations and unidentified PPL potential
future generating facilities in the basin may require a
combined dedicated water supply of up to 10,000 acre feet
(approximately 3.3 bg) per year to satisfy the Commission’s
consumptive water use compensation requirement; and
WHEREAS, PPL proposes to satisfy the Commission’s
consumptive water use compensation requirement for PPL's
existing and potential future generating facilities in the basin
through the Proposed New Drought Operations Plan for
Lake Wallenpaupack for a credit of up to 10,000 acre feet of
water per year toward satisfaction of the requirement; and
WHEREAS, the Proposed New Drought Operations
Plan for Lake Wallenpaupack would:
• preserve lake elevations for recreation;
• accommodate project operation to enhance
conditions in the Lackawaxen River;
• sustain the project’s capability to produce peaking
and emergency electricity;
• assure refill of the lake by June 1st in most years;
• make additional storage in Lake Wallenpaupack
available to satisfy the Montague flow objective
during drought watch, drought warning and drought
conditions; and
• allow for the conservation of storage in the three
New York City Delaware Basin reservoirs; and
WHEREAS, under some conditions, the proposal
would increase the quantity of water from the NewYork City
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
478 PROPOSED REGULATIONS
Delaware Basin reservoirs required to meet temperature
objectives in the reservoir tailwaters, but these releases
would be offset by the availability of increased storage in the
reservoirs; and
WHEREAS, an interim minimum flow target
established for the West Branch Delaware River by the
parties to the 1954 Supreme Court Decree will remain in
effect nothwithstanding any increase in releases from Lake
Wallenpaupack under the proposal; and
WHEREAS, PPL has performed a comparison of its
proposal with the alternative of gallon for gallon
replacement by Lake Wallenpaupack of depletive use by its
generating units and has demonstrated that gallon for gallon
replacement results in comparatively greater use of storage
in the Upper Basin and increased incidence of basinwide
drought conditions; and
WHEREAS, the Commission’s Flow Management
Technical Advisory Committee has reviewed the results of
PPL’s analysis of the Proposed New Drought Operations
Plan for Lake Wallenpaupack and has recommended, with
the concurrence of New York City, that the Commission
accept PPL’s Proposed New Drought Operations Plan and
grant to PPL its proposed consumptive water use
compensation credit, and that the Comprehensive Plan and
the Water Code be amended accordingly; now therefore,
BE IT RESOLVED by the Delaware River Basin
Commission:
1. The Comprehensive Plan and Article 2, Sections
2.5.5 and 2.5.6 of the Water Code of the Delaware River
Basin are amended as indicated in paragraphs 1.A through
1.F, below, to permit the Commission to direct operation of
Lake Wallenpaupack during all drought operations, in
accordance with Table 2 of Section 2.5.5 as hereby revised.
It is understood that any and all provisions pertaining to the
operation of Lake Wallenpaupack during basinwide drought
warning also apply to basinwide drought watch as
temporarily defined by the Commission in Docket No. D-77-
20 CP (Revised); reference to "drought watch" is noted in
brackets "[ ]" for clarity herein but is not to be included in
the amended Water Code at this time.
A. The following sentence is added at the end of
the first paragraph of Section 2.5.5:
Lake Wallenpaupack also may be utilized to
complement the drought management operations of
the New York City reservoirs during "drought
warning" [and drought watch] conditions as defined
by Figure 1 in Section 2.5.3A.
B. The second paragraph of Section 2.5.5
(beginning "Lake Wallenpaupack and the Mongaup
reservoirs …") is revised as follows, beginning with the third
sentence:
During "drought" and "drought warning" [and
drought watch] conditions, as defined in Figure 1 of
Section 2.5.3.A of the Water Code, the power
companies shall release water only in accordance
with Commission direction. The Lake
Wallenpaupack elevation schedules during normal,
drought warning, [drought watch,] and drought
conditions are set forth in Table 2. The lake
elevations in Table 2 have been established to
preserve the recreation values and other operational
benefits of the lake while also providing water
storage to be utilized at the direction of the
Commission during the Commission’s drought
operations as set forth in this section and in Section
2.5.6. The utilization of Lake Wallenpaupack at the
direction of the Commission during the
Commission’s drought operations shall be
conditioned upon the following:
1. Utilization of Lake Wallenpaupack during
drought warning [and watch] shall be consistent
with PPL’s FERC license and power generation
requirements as well as with lake and downstream
needs.
2. During drought, PPL may, at the Commission’s
direction, operate for power production when the
lake elevation is above the following first-of-month
"normal elevation" as defined in Table 2.
3. During a declared power emergency, PPL may
operate for power production regardless of lake
elevation.
4. Subject to the concurrence of the Commission,
in response to changing electrical demand patterns,
PPL may revise the lake elevations for "normal
conditions" shown in Table 2.
C. Table 2 of Section 2.5.5 is revised in its
entirety, as follows:
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
PROPOSED REGULATIONS 479
TABLE 2. LAKE WALLENPAUPACK ELEVATION
SCHEDULES
The existing FERC license for the Lake Wallenpaupack
Hydroelectric Project requires that, except when flood
waters are being stored, the maximum elevation of the lake
shall be limited to elevation 1182.0 between August 1 and
November 15 of each year (Article 41). In its application to
the FERC for a new license, PPL will seek to include the
drought condition lake elevation schedules in Table 2 on a
permanent basis, including a lake elevation of 1183.0 on
August 1. In the interim, until the FERC issues a new
license, PPL will request annual approval from the FERC to
operate the lake in accordance with Table 2 during the
August 1-November 15 period. PPL will notify the
Commission of the FERC's response to each annual request.
D. Subsection C.3.c is added to Section 2.5.6, as
follows:
c. The Commission may direct releases from
Lake Wallenpaupack subject to the same conditions
as applied to operation during lower basin drought
in D.3.e, except that utilization of Lake
Wallenpaupack during lower basin drought warning
shall be consistent with PPL’s FERC license and
power generation requirements as well as with lake
and downstream needs.
E. At Subsection D.3.b.iv of Section 2.5.6, the
volume of storage assigned to Lake Wallenpaupack is
Day
Normal
Conditions
Drought
Warning
[and
Watch]
Drought
June 1 1187.0 1187.0 1187.0
July 1 1185.0 1185.0 1185.0
August 1 1183.01 1183.01 1183.01
September 1 1181.0 1180.0 1179.0
October 1 1179.0 1176.0 1175.0
November 1 1181.0 1172.0 1171.0
December 1 1182.0 1167.5 1167.5
January 1 1183.0 1170.1 1170.1
February 1 1181.5 1173.3 1173.3
March 1 1180.0 1175.6 1175.6
April 1 1182.3 1182.3 1182.3
May 1 1185.6 1185.6 1185.6
revised to 33.9 bg from 29.81 bg.
F. A second sentence is added to Subsection
D.3.e.i of Section 2.5.6 as follows:
During drought, PPL may, at the Commission’s
direction, operate for power production when the
lake elevation is above the following first-of-month
"normal elevation" as defined in Table 2 and during
a declared power emergency regardless of lake
elevation.
2. The Commission hereby grants PPL a credit to
satisfy the Commission's consumptive use compensation
requirement for PPL's existing and potential future
generating facilities in the basin. During any period from
June 1 to the following May 31, the credit shall be equal to
the amount of consumptive water use compensation
otherwise required by PPL’s generating facilities but in no
event shall the credit exceed 10,000 acre feet (approximately
3.3 bg).
3. Any adverse impact on the New York State
reservoir releases program for recreational uses of the river
that is attributable to the proposed operation of Lake
Wallenpaupack will be ameliorated by releases from the
New York City Delaware Basin reservoirs. Water saved in
the New York City Delaware Basin reservoirs as a result of
operations in accordance with this resolution shall be
available for such uses as may be approved from time to time
by the parties to the 1954 Supreme Court Decree.
BY THE COMMISSION
ADOPTED:
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
1
480 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 PHARMACY
24 DE ADMIN. CODE 2500
Statutory Authority: 24 Delaware Code,
Section 2509 (24 Del. C. 2509)
ORDER
A Public Hearing was held to receive comments on June
5, 2002 at a scheduled meeting of the State Board of
Pharmacy. The Board considered proposed changes to
Regulations 1.0, 3.0, 5.0, 9.0, 10.0, 11.0 and 15.0 as
published in the Register of Regulations, Vol. 5, Issue 11,
May 1, 2002.
Summary Of The Evidence And Information Submitted
The following is a summary of the written comments.
1. Albert W. Helmeczi, M.S., R.Ph., FASHP, the
Director of Pharmacy Services for Christiana Care Health
Services, commented that he supports the elimination of the
requirement that a pharmacist must check compounding
ingredients, their weights and measures prior to
compounding by a certified pharmacy technician or
pharmacy intern because this may lead to more efficient
practices. The pharmacist may still check ingredients and
weights before compounding to ensure accuracy. However,
if procedures may be established to verify this accuracy after
the product is prepared, the compounding process may
increase efficiency without decreasing accuracy.
He does not support changes in the definition of the
"practice of dispensing" (Section B) and the changes
regarding who may exchange prescriptions verbally because
these changes may lead to medication errors or adverse
reactions. If a pharmacy technician is allowed to receive
prescriptions verbally, the responsible pharmacist has no
way to verify accuracy. The current certification process
does not ensure that pharmacy technicians have sufficient
skill and knowledge to certify prescription orders.
Mr. Helmeczi does not believe that training procedures
for pharmacy technicians prepares them to assess adequately
and respond to requests for information that a pharmacy
receives or determine potential drug interactions. Pharmacy
technicians should not perform these functions without
supervision.
2. Herbert E. Von Gorres, R.Ph. commented that the
National Association of Boards of Pharmacy (N.A.B.P.)
model language will allow for more efficient and safe
prescription processing. He supports the expanded role of
pharmacy technicians, although he does not have a
nationally certified pharmacy technician working for him
and doubts that he or his partners would be comfortable with
the expanded role of pharmacy technicians in providing
information. He does not support removing the pharmacist
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 481
from providing the final check and asks that the Board not
indiscriminately grant exceptions to the final check "for
good cause shown," particularly in a community practice.
Like pharmacists, nationally certified pharmacy
technicians acquire professional judgment and a high level in
their field. They are also required to continue their
education. They are often at least as proficient as a first- or
second-year pharmacy intern, who may lack practical
pharmacy experience.
The pharmacist is increasingly a dispenser of
knowledge rather than a dispenser of drugs. Relinquishing a
portion of the drug-dispensing process not requiring a
pharmacist’s professional judgment to those under a
pharmacist’s supervision would be better than relinquishing
the entire process.
3. Kevin N. Nicholson, R.Ph., J.D., Director of
Pharmacy Regulatory Affairs for the National Association of
Chain Drug Stores, commented that his organization
supports the Board’s proposal of N.A.B.P. language for
centralizing prescription processing. Centralized processing
is necessary to meet the needs of increased prescription
volume, patient counseling, and other cognitive services.
The model language also allows technological changes in a
safe and efficient manner.
He recommends that Regulation 5.0, defining a
"certified pharmacy technician" as one who has passed a
"national certification program approved by the Board and
maintains certification" be expanded to include other
options, such as Pharmacy Technician Competency
Examinations and training-and-assessment programs
including those provided by employers. These examinations
and training programs are usually targeted toward particular
practice areas and often better prepare technicians than does
general certification. He provides suggested language.
He also recommends that, rather than limiting
technicians to duties provided by specified lists under
subsections 5.4.3 and 5.4.4, the Board state those activities
that the two classes of technicians may not perform and
allow their performance of all other functions. He provides
suggested language for sections defining the roles "Certified
Pharmacy Technician" and "PharmacyTechnician."
Finally, he recommends elimination of the proposed
language under 5.4.2.2. that provides that the pharmacist on
duty must complete and maintain written documentation
permitting the certified pharmacy technician to perform
allowed activities. This is in keeping with the previous
recommendations regarding adoption of language in the
N.A.B.P. model concerning activities the certified pharmacy
technician may not perform. This would allow pharmacists
to decide which of the non-prohibited activities technicians
may perform without increased record-keeping
requirements.
4. Lawrence J. Rasero, Ph.D. commented that he is
opposed to proposed changes that would reduce patient
safety. Under A.9.B. #1 and #2, pharmacy technicians
should not be allowed to receive oral prescriptions or to
certify a prescription order. Under D.4.b and C., pharmacy
technicians should not be allowed to provide drug
information to health care professionals. The proposed
change should also assure that the pharmacist is directly
supervising a pharmacy technician during the compounding
process. Under D.5, the compounding rules should not be
eased. Quality assurance requires that each step of the
process be controlled or checked. Looking at the end
product does not provide quality assurance. Under G.4, only
the pharmacist should be responsible for prospective and
retrospective drug reviews. Patient safety will be
compromised if the role of the pharmacy technician is
expanded to include activities beyond the pharmacy
technician’s training and experience.
5. Kenneth R. Baker, R.Ph., J.D., Executive Vice
President for PMC Quality Commitment, Inc. and Vice
President and general counsel for Pharmacists Mutual
Insurance Co., commented that he advocates a greater role
and responsibility for pharmacy technicians so long as
patient safety is not compromised. He makes the following
eight comments:
1. Definition A.8 "Pharmacy Technician" is a
non-definition because it includes everyone except
pharmacists and interns. The regulation does not provide for
registration of pharmacy technicians and, therefore, does not
provide for control over who has access to drugs or judge
training and knowledge.
2. The role of the pharmacy technician should be
expanded in the mechanical aspects of dispensing. It should
not be expanded into areas requiring a pharmacist’s training
and knowledge. The proposed definition in paragraph B
would blur the distinct line between those pharmacist’s
duties that can and cannot be delegated. Although a
pharmacist’s training and knowledge may not always be
needed, a patient may be put at risk when that training and
knowledge is needed and not available. Paragraphs D.3 and
D.4 do not satisfy this concern because they are not
exhaustive and do not provide limitations.
3. Paragraph D. fails to provide standards for
training of pharmacy technicians. In-store training may or
may not be effective. The pharmacist-in-charge is not
provided guidance about what constitutes "proper" training.
The documentation requirement does not cure the problem.
Recognition of specific, standardized material and courses
provides greater protection. Several standard training
manuals are available and could be approved. Training
should be standardized, and successful training should be
documented.
4. Parts of paragraph D.4 raise concerns. D.4(a)
could be interpreted to allow a Certified Pharmacy
Technician to take new prescriptions by phone. This is an
activity that requires the training and knowledge of a
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
482 FINAL REGULATIONS
pharmacist. The definition of Certified Pharmacy
Technician does not require experience sufficient to realize
and resolve problems at this point in the prescription
process. There are also potential problems of interpretation.
5. Paragraph D.4(d) could tempt Certified
Pharmacy Technicians to read drug information rather than
provide counseling. Patient counseling by a pharmacist is
necessary for public safety.
6. Paragraph D.5 raises unspecified concerns
about compounding.
7. Paragraph G.3 appears unduly restrictive, at
least for community practice in that it limits who can take
information concerning allergies and other medications to
pharmacists, interns, and Certified Pharmacy Technicians.
Most people can be trained to take this information. If
allergies or other medications are present, it is the
pharmacist and not the pharmacy technician who decides on
further investigation before or during counseling.
8. Paragraph G.4 raises problems because it is not
prudent to allow a pharmacy technician, regardless of
amount of training or degree of supervision, to perform drug
reviews. Although C.1 requires prospective drug reviews to
be conducted by pharmacists, Paragraph G.4 can be read to
allow important parts of that function to be performed by
Certified Pharmacy Technicians.
6. Kimberly Couch, Pharm.D., President of Delaware
Society of Health-System Pharmacists (D.S.H.P.),
commented that the D.S.H.P. Board of Directors requests
that the definition for dispensing be amended to require that
the resulting product is one that stems from a lawful order of
a practitioner but that such an order be certified by a licensed
pharmacist because only a licensed pharmacist has the
knowledge to certify a prescription accurately. Under Item
5.2, the Board opposes removal of the language "which shall
be performed only by a pharmacist, or a pharmacy intern or
student participating in an approved College of Pharmacy
coordinated, practical experience program" because such
removal allows for the dispensing of product by unqualified
personnel.
Under Item 5.4.4.1, the Board requests that the phrase
"new authorizations" be changed to "authorization for
renewals" because this reflects language in 5.6 and conveys
that a certified pharmacy technician may receive
authorizations for continuation of medications but not new
prescriptions.
Under Item 5.4.4.4, the Board believes that the current
certification process for pharmacy technicians does not focus
on the interpretation of medical or drug information. It may
be contrary to the public interest to allow pharmacy
technicians to provide information by pharmacy technicians
reading directly from reference material. The knowledge of
a certified pharmacy technician does not provide adequately
for the assessment and decision-making necessary to provide
drug information. The pharmacy technician could provide
other information, such as that regarding product preparation
and stability.
Under Item 5.4.5, the Board support removing the
phrase "before proceeding with the compounding" from both
the checking of the compounding and the checking of
weights and measurements because these allow the
pharmacist to exercise professional judgment in determining
the appropriate time for such checks relative to the task
being performed.
Under Item 5.7.4, the Board opposes allowing certified
pharmacy technicians to examine patient profiles to
determine the possibility of harmful drug interactions. The
training of certified pharmacy technicians does not provide
the knowledge necessary to detect or determine the severity
of potentially harmful interactions. The computer software
programs in use are not a substitute for the pharmacist’s
review of individual patient profiles. The Board
recommends deletion of the language "certified pharmacy
technician under the direct supervision of a pharmacist."
7. Nancy J. W. Lewis, Pharm.D., M.P.H. commented
that she opposed specific changes to Regulation V. Sections
5.2.1 and 5.2.2 expand pharmacy technicians’ duties to
confirming proper dosage and instructions, reviewing for
incompatibility and determining possible harmful
interactions, all of which require the pharmacist’s expert
knowledge. Section 5.4.4.4 allows a certified pharmacy
technician to provide drug information by quoting from
reference material, which both fails to assist provision of
accurate and appropriate information and increases potential
liability for the pharmacy technician’s actions. Section 5.2.1
allows pharmacy technicians to receive new oral
prescriptions, which is contrary to recommendations of both
the National Association of Boards of Pharmacy and the
Institute for Safe Medication Practices that only pharmacists
receive such prescriptions. Sections 5.4.5.2 and 5.4.5.3
remove the pharmacist’s check of ingredients and amounts
used in prescriptions before compounding occurs, which
checks are critical for the accurate compounding of creams
and ointments. Section 5.4.2.2 allows for fragmented patient
care processes and creates barriers to a systematic approach
to protecting patient safety.
In summary, Ms. Lewis opposes adoption of the
proposed changes, recommends further discussion regarding
the training and regulation of pharmacy technicians, seeks
comments from national pharmacy organizations involved in
patient safety, and wants additional information from the
pharmacy and legal communities regarding wording.
8. Suzanne E. Raab-Long, Vice President,
Professional Services, Delaware Healthcare Association
commented that the Association agrees that the concept of
certified pharmacy technician may have merit, more work
should be given be given to make sure that the scope of the
technician’s practice does not go beyond their training or is
outside direct supervision of a pharmacist.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 483
She makes detailed comments regarding Regulation V.
She calls for reinsertion of deleted language in sections 5.2
and 5.4.2 and, in the latter, change "supportive personnel" to
"pharmacy technician." She suggests the complete removal
of sections 5.4.2.2, 5.4.4.2, and 5.4.4.4; deletion of the first
sentence in sections 5.4.2.1 and 5.4.2.3; removal of the word
"certified" in sections 5.4.5, 5.7.3, and 5.7.4. She also
makes the following recommendations: (1) in section
5.4.4.1, calling for a refill can be done by either level of
technician and should be included in section 5.4.3.7; (2) in
section 5.8.1.1, delete "certified pharmacy technician" while
leaving "intern"; and in section 5.12, require that the public
be informed of information shared through the use of outside
contract and also inform the patient of any instances of
information sharing.
She also raises detailed questions regarding Regulation
XI that indicate that language may need to be clarified.
Regarding section 11.2.7, she asks the nature and frequency
of accountability procedures, whether institutions must have
nurses sign off for each receipt of a controlled substance, and
also would nurses be required to count meds received and
keep a descending record of all controlled substances.
Regarding section 11.3, she asks whether it is the intent of
the Board of Pharmacy to delegate several aspects of its
authority to the Executive Secretary. Regarding section
11.3.1.3, she queries if it is the intent of the section to require
nursing home to submit influenza and pneumococcal
vaccines, which are normally stocked during the fall season,
on the stock list. Regarding section 11.3.1.6, she questions
whether the section intends that all syringes and needles
must be counted or rather that there be a process in place to
inventory needles and syringes. Regarding section 11.3.4.2,
she asks whether the pharmacist physically replace all
medications in a Pyxis system or may the pharmacy
technician refill the medications after they have been
checked for accuracy by the pharmacist. Regarding section
11.4.1, inquires if it is the intent of the section to require
nurses to log the date, quantity, name and strength of every
medication returned. Regarding section 11.4.3, she asks if
unit doses of controlled substances be returned. Finally,
regarding section 11.5.4, she suggests that, since a nurse
cannot change the directions on a pharmacy label, an extra
label should be provided or a new label printed.
9. Daniel A. Hussar, Ph.D., Remington Professor of
Pharmacy, Philadelphia College of Pharmacy commented
that he supports the use of technicians to support pharmacists
in their practice, however, he has concerns about some of the
responsibilities technicians would assume if the proposed
revisions are approved. First, regarding section 5.2, he is
opposed to certified pharmacy technicians having the
authority to receive oral prescriptions because of the
increased risk of transmission errors and misinterpretation of
prescription orders. Second, regarding section 5.4.4.4, he is
concerned about certified pharmacy technicians providing
information to the public from available reference material.
He cites the examples of providing dosage information for a
medication when the medication may be used for varying
purposes with different dosage levels, something beyond the
educational background of certified technicians. Third,
regarding section 5.4.5, he is concerned about the deletions
of the phrase "before proceeding with compounding," which
would lead to the weighing and measuring of ingredients by
technicians not directly under the direct observation of the
pharmacist. If the pharmacist does not verify accuracy, it is
unlikely that mistakes in compounded medications would
not be detected prior to patient use. Fourth, regarding
sections 5.4.1 and 5.4.2, he is uncertain about the
distinctions between "pharmacist-in-charge," "pharmaciston-
duty," "registered pharmacist," and "licensed
pharmacist," as used in these sections. Fifth, regarding
section 5.4.2.3, he is unclear what kinds of situations might
qualify for the exemption to the final check by the
pharmacist prior to dispensing contained in the phrase
"except where the Board of Pharmacy grants, in writing, an
exemption for good cause shown." Finally, he suggests that
the regulations include a provision, similar to that in some
other states, that a pharmacy technicians may not enter or be
in a pharmacy when there is no pharmacist on duty.
He also suggests that pharmacy technicians be trained to
assume a greater role in resolving matters involving a
patient’s prescription drug benefits insurance. Dispensing
errors currently seen in the industry argue for more
supervision in the dispensing process. If the regulations are
promulgated in their current form, he believes it imperative
that the Board of Pharmacy obtain information regarding
dispensing errors and any resulting lawsuits involving
Delaware pharmacies to provide a baseline for assessing the
impact of the regulations.
10. Donald Holst, President of the Delaware
Pharmacists Society comments that he supports an greater
education for and expanded use of pharmacy technicians.
However, he has concerns with certain provisions of
Regulation V. Regarding section 5.4.4.1, while not
opposing refill authorization, he sees a problem with
technicians receiving a new prescription directly from
someone who is not usually a nurse or physician. The lack
of appropriate training by both parties to the transaction
could well lead to disaster. Regarding section 5.4.4.4, he
believes that it is not appropriate for technicians to provide
information directly to the public. Such information should
be provided by someone with the expertise to give a valid
clinical opinion. Regarding sections 5.4.4.2 and 5.4.4.3, he
believes that weighing and measuring of ingredients to be
compounded should be checked prior to compounding the
prescription.
11. Susan Winckler, Esq., Vice President for
Policy and Communications, American Pharmaceutical
Association, and a pharmacist commented that it is the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
484 FINAL REGULATIONS
policy of the APhA to support an expanded role for
pharmacist technicians but to require pharmacist control of
the dispensing process and take responsibility for completed
medication orders. The APhA also supports the use of
technical and personnel assistance in performing
administrative tasks. The APhA opposes the expansion of
the technician’s role if it crosses the line into the practice of
pharmacy. The APhA recommends that the intent of the
proposed changes in section 5.2, particularly 5.2.2, be
clarified so as not to all technicians from confirming that a
prescription order has the "proper dosage and instructions"
or that the prescription is "complete." The APhA also
opposes changes to section 5.4.4.4 that would allow a
pharmacy technician to provide drug information from
reference materials. Finally, the APhA recommends
clarification of the intent of section 5.7.4 that appears to
allow pharmacy technicians to determine harmful drug
interactions or allergic reactions. The technician does not
have the educational background to interpret drug interaction
or allergic reaction information provided by pharmacy
computer systems, which, although valuable, do not always
provide reliable information. In conclusion, the APhA
supports the expanded role of pharmacist technicians,
particularly in administrative functions, that would aid the
pharmacist in moving into a more proactive patient-centered
role. Ms. Winckler also submitted 2 articles: (1) Elizabeth
A. Chrischilles, et al., "The Role of Pharmacy Computer
Systems in Preventing Medication Errors," Journal of the
American Pharmaceutical Association, May/June 2002,
439-48 and (2) American Pharmaceutical Association,
"2002 White Paper on Pharmacy Technicians: Needed
Changes Can No Longer Wait," 6th Draft, April 8, 2002.
13. Pat Carroll-Grant, R.Ph., C.D.E., Executive
Director of the Delaware Pharmacists’ Society (DPS) sent in
comment from the DPS Board of Directors. Their concerns
related to Regulation 5.0, specifically,
1. 5.4.4.4 allowing certified pharmacy
technicians to provide drug information quoted from
reference material;
2. 5.4.5.2 and 5.4.5.3 removing the wording
requiring the pharmacist to check formulation and
ingredients prior to compounding;
3. 5.2 and 5.2.1 and 5.3.3 allowing a technician to
receive oral prescriptions and certify a prescription order;
4. 5.4.2.2 requiring written documentation from
the pharmacist on duty permitted the certified pharmacy
technician to perform the task allowed under the regulation;
and
5. 5.4.2.3 allowing the Board to give a waiver
from the final check.
The Board of Directors also questioned whether the
statute authorized the changes. On May 18, 2002, the general
membership voted to oppose the changes to Regulation 5.0.
The following is a summary of the verbal comments made
by individuals who did not also submit written comments.
1. Kim Robbins, R. Ph., is President-Elect of the
Delaware Pharmaceutical Society and a retail pharmacist.
She speaks for herself and not for the Society in her
presentation. She agrees that a pharmacy technician
performing non-clinical tasks so that the pharmacist can
spend more time with patients is important. She is, however,
opposed to pharmacy technicians providing drug
information. She also believes that nationally certified
technicians should be registered with the Board of
Pharmacy. She urged the Board not to pass Regulation 5 but
to return it to the committee to address the problems that
were raised.
2. Dustin Crane is a certified pharmacy technician and
a Pharm. D. candidate. He was concerned with the changes
in Regulation 5 that would permit certified pharmacy
technicians to give out drug information to others in the
health care system. He does not believe that pharmacy
technicians have the knowledge of appropriate dosage
necessary or a sufficient understanding the side effects of
medication. He believes a pharmacist should be the sole
provider of drug information.
3. Maryanne Holzapfel, R. Ph., has been a practicing
pharmacist for 19 years and she is a past President of the
Board of Pharmacy. She believes the Board should consider
registration of pharmacy technicians as a tracking
mechanism. She also believes that the pharmacist should be
supervising compounding and that pharmacy technicians
should not be permitted to give out drug information.
4. Gesine Abrutyn, R.N., is not a pharmacist. She
recognizes that pharmacists need help but is concerned about
using a pharmacy technician to take prescriptions and give
information to a practitioner’s office. It increases the chance
of error. She related a personal experience where a
pharmacist was able to catch a medication error.
5. Patti Choruzy is a nationally certified pharmacy
technician. She has taught the pharmacy technician course
at Del Tech and was on the committee that proposed these
regulation changes. She is currently the pharmacy trainer at
Happy Harry’s. She believes that expanding the role of the
certified pharmacy technician would improve patient care by
freeing the pharmacist from clerical and administrative
duties so that the pharmacist could concentrate on patient
care.
6. David Dryden, R.Ph., J.D. is the Executive
Secretary for the Board of Pharmacy and Director of the
Office of Narcotics and Dangerous Drugs. He is past present
of the Delaware Pharmaceutical Society. He was a member
of the pharmacy technician committee to draft changes and
supports what the Board is trying to accomplish in making
pharmacists more available to patients. The pharmacy
technician committee included individuals from hospital
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 485
and community pharmacists. His real concern with the
proposed regulation was with the scientific information that
is provided. He believes that duty should be solely the
responsibility of the pharmacist. The pharmacist should be
responsible for the Drug Utilization Review check, the final
check, and consultation.
Findings Of Fact With Respect To The Evidence
And Information Submitted
1. The comments from the public persuade the Board
that Regulation 5.0 should be withdrawn. Generally, the
concept of trained pharmacy technicians to assist in the
practice of pharmacy is supported. The main public safety
concerns expressed relate to receiving new verbal
prescriptions and providing drug information to medical
personnel. These activities may require more training than is
received by a pharmacy technician to avoid errors. The
Board agrees that it should return the revision of Regulation
5.0 to the pharmacy technician committee with instructions
to carefully consider the pharmacy technician model rules
from the National Association of the Boards of Pharmacy
and the comments received. Legislative changes may also
be recommended.
2. Other proposed regulations where terms were
changed to be consistent with proposed Regulation 5.0, viz.,
Regulations 3.0, 9.0, 10.0, and 11.0 are also withdrawn.
3. There were no public comments related to the
proposed change to Regulation 1.0.
4. There were no public comments related to the
proposed change to Regulation 15.0.
A change to proposed Regulation 15.0 is necessary in order
to replace the proposed words "pharmacy technician" with
the words "supportive personnel." The Board finds this is
non-substantive and results from the withdrawal of
proposed Regulation 5.0.
Decision And Effective Date
1. The Board hereby withdraws its proposal to change
Regulations 3.0, 5.0, 9.0, 10.0, and 11.0.
2. The Board adopts the changes to Regulation 1.0
and 15.0 to be effective 10 days following publication of this
order in the Register of Regulations.
Text And Citation
The text of the Regulations 1.0 and 15.0 are as they
appeared in the Register of Regulations, Vol. 5, Issue 11,
May 1, 2002 except that the words "pharmacy technician" is
replaced with the words "supportive personnel" in
Regulation 15.0. as noted above.
SO ORDERED this 14TH day of August, 2002.
STATE BOARD OF PHARMACY
Calvin A. Freedman, R.Ph Karen J. Dey,
President R.Ph.Vice President
Yvonne Brown, R.Ph. Carolyn Calio,
Donna Dagen, Public Member,John E. Murphy, R.Ph.
Nancy E. Weldin, Public Member
Board of Pharmacy
1.0 Pharmacist Licensure Requirements
2.0 Grounds for Disciplinary Proceedings
3.0 Pharmacy Requirements
4.0 Pharmacy Closing Procedure
5.0 Dispensing
6.0 Pure Drug Regulations
7.0 Non-pharmacy Outlets Handling Legend
Veterinary Drugs
8.0 Requirements for Obtaining a Permit to Distribute
Drugs on a Wholesale Basis
9.0 Hospital Pharmacy
10.0 Sterile Pharmaceuticals and Antineoplastic Agents
11.0 Pharmaceutical Services in Nursing Homes
12.0 Health Care Facilities
13.0 Nuclear Pharmacy Regulations
14.0 Administration of Injectable Medications
15.0 Automated Pharmacy Systems
1.0 Pharmacist Licensure Requirements
1.1 Examination Requirements
1.1.1 In order to be eligible for examination for
licensure, an applicant must have graduated from an
approved school or college of pharmacy. An approved
school or college of pharmacy is an institution which has
established standards in its undergraduate degree program
which are at least equivalent to the minimum standards for
accreditation established by the American Council on
Pharmaceutical Education. Provided, however, that
graduates of schools or colleges of pharmacy located outside
of the United States, which have not established standards in
their respective undergraduate degree programs which are at
least equivalent to the minimum standards for accreditation
established by the American Council on Pharmaceutical
Education, shall be deemed eligible for examination for
licensure by providing evidence satisfactory to the Board of
Pharmacy of graduation from such school or college and by
successfully passing an equivalency examination recognized
by the Board of Pharmacy. Certification by the National
Association of Boards of Pharmacy Foundation (NABP)
Foreign Pharmacy Graduate Examination Committee
(FPGEC) meets the equivalency examination requirement.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
486 FINAL REGULATIONS
1.1.2 Candidates must obtain a passing grade of
75 on the NAPLEX Examination to be eligible for a license
to practice. The Secretary will supply the grade obtained to
the candidate upon receipt of a written request from that
person. In addition, candidates must take and obtain a
passing grade of 75 on a Jurisprudence Examination.
See 4 DE Reg. 163 (7/1/00)
1.1.3 Any applicant who fails the examination
shall be entitled to take a re-examination. If an applicant has
failed the examination three times, he/she shall be eligible to
take the examination, provided that he/she produces
evidence of working full-time as an intern for a period of six
months between examinations or has attended an accredited
college of pharmacy as a registered student for a minimum
of one semester consisting of 12 credits during the interim.
A certification of satisfactory completion of such work shall
be furnished by the Dean of the College or the preceptor as
the case may be. The applicant may continue to sit for the
Examination at its regularly scheduled time in the next
succeeding years, provided the applicant has fulfilled the
requirement for internship or course of study required herein
between each examination.
See 4 DE Reg. 163 (7/1/00)
1.1.4 Three failures of the Jurisprudence
Examination requires three months of internship or one
semester college course of Jurisprudence prior to the
applicant being eligible to re-take the Jurisprudence
examination.
1.2 Practical Experience Requirements
1.2.1 An applicant for registration as an intern
must submit an application for registration of Internship after
entering the first professional year of college of pharmacy
which includes an "Affidavit of Class Standing" and
"Affidavit of Preceptor." This application must be obtained
from the Board of Pharmacy. If the applicant is a graduate
of a foreign pharmacy school, he/she must produce evidence
that he/she has passed an equivalency examination by the
Board.
1.2.2 Persons who register as interns in the State
of Delaware shall, in accordance with the requirements of 24
Del.C. §2515, complete not less than 1500 hours of Board
approved practical experience under the supervision of a
licensed pharmacist. The total 1500 hours of internship may
be acquired in the community or hospital settings. A
minimum of 1000 hours shall be obtained in the community
or hospital settings. The remaining 500 hours may be
obtained in other recognized fields of practice, e.g.:
Industrial Pharmacist, Drug Information Pharmacist,
Military Pharmacist, Mail Order Pharmacist, HMO
Pharmacist, Consultant Pharmacist (Nursing Home,
Infusion, Medicaid DUR, Etc.), Home Health Care
Pharmacist (may include Durable Medical Equipment, etc.),
Nuclear Pharmacist, Compliance Pharmacist, Government
Pharmacist, Clinical Pharmacist, Contracted Pharmacy
Services.
1.2.3 The hours accrued during the College of
Pharmacy Practical Experience Program may be applied to
the 1500 hours total. These hours shall be recorded on the
College Practical Experience Affidavit supplied by the
Board. Additional practical experience acquired in the State
of Delaware must be submitted to the Board on the Affidavit
of intern Experience form provided by the Board of
Pharmacy Office. Practical experience acquired in another
State is acceptable if the State Board in which the applicant
acquired the hours submits a letter of certification, or if the
applicant’s preceptor completes the Delaware State Board of
Pharmacy’s Affidavit of intern Experience form. Applicants
who have not completed all the practical experience
requirements, but who have graduated from an accredited
college or have been certified by the NABP Foreign
Pharmacy Graduate Examination Committee are eligible to
take the examination. However, applicants will not be fully
licensed until all the requirements of the Statutes and
Regulations are completed.
1.2.4 Practical experience must be acquired
under the supervision of a licensed pharmacist known as a
Preceptor. The Preceptor must be a pharmacist licensed in
this State or any other State and must have a minimum of
two years of pharmacy practice. The Preceptor must certify
that the intern has successfully completed all the
requirements outlined in the Responsibilities of the Intern
professional assessment form.
1.2.5 An intern must notify the Board of
Pharmacy in writing within ten (10) days of a change of
preceptor. A change of preceptor affidavit must be
completed and filed with the Board.
1.3 Continuing Education Requirements
1.3.1 A pharmacist must acquire 3.0 C.E.U.'s
(30 hours) per biennial licensure period. No carry over of
credit from one registration period to another period is
permitted.
See 1 DE Reg. 1965 (6/1/98)
See 2 DE Reg. 683 (10/1/98)
1.3.2 Hardship- Hardship exemptions may be
granted by the Board of Pharmacy upon receipt of evidence
that the individual was unable to complete the requirements
due to circumstances beyond his control.
1.3.3 Criteria for Hardship Exemption as
Recommended by the Board of Pharmacy:
1.3.3.1 Applicant must notify the Board in
writing concerning the nature of the hardship and the time
needed for an extension. In case of medical disability, a
letter from the physician with supporting documentation to
corroborate the condition and the length of time of extension
needed.
1.3.3.2 The Board of Pharmacy will review
requests.
1.3.3.3 The Board will notify the registrant of
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 487
its decision.
1.3.4 Persons who are newly licensed after the
registration period begins, must complete continuing
education units proportional to the total number of
continuing education units required for the biennial licensure
renewal. (1.25 hours/per month).
See 4 DE Reg. 163 (7/1/00)
1.4 Continuing Professional Educational Programs
1.4.1 Topics of Study
Topics of study shall be subject matter
designed to maintain and enhance the contemporary practice
of pharmacy.
1.4.2 Approved Provider
1.4.2.1 Any provider approved by ACPE.
1.4.2.2 In-state organization which meets
criteria approved by the Board.
1.4.3 Application for Delaware State Provider
1.4.3.1 Any in-state organization may apply
to the Board on forms provided by the Board for initial
qualification as an approved provider. The Board shall
accept or reject any such application by written notice to
such organization within 60 days after receipt of its
application. If an organization is approved, the Board will
issue a certificate or other notification of qualification to it,
which approval shall be effective for a period of two years
and shall be renewable upon the fulfillment of all
requirements for renewal as set forth by the Board.
1.4.3.2 The Board may revoke or suspend an
approval of a provider or refuse to renew such approval if the
provider fails to maintain the standards and specifications
required. The Board shall serve written notice on the
provider by mail or personal delivery at its address as shown
on its most current application specifying the reason for
suspension, revocation, or failure to renew. The provider so
affected shall, upon written request to the Board within ten
days after service of the notice, be granted a prompt hearing
before the Board at which time it will be permitted to
introduce matters in person, or by its counsel, to defend itself
against such revocation, suspension, or failure to renew, in
accordance with the provisions set forth in the State's
Administrative Procedures Act.
1.4.4 Criteria for Approval of Delaware State
Providers. Only applicants who are located within the State
of Delaware are eligible. Such Continuing Education
providers shall provide evidence of ability to meet the
following criteria or approval as a Continuing
Pharmaceutical Education Provider. Other persons must
apply through ACPE for approval or be acceptable to other
Boards of Pharmacy that certify continuing education for
relicensure.
1.4.4.1 Administration and Organization
1.4.4.1.1 The person who is in charge
of making sure that the program meets the quality standards
must have a background in the administration of education
programs.
1.4.4.1.2 There shall be an identifiable
person or persons charged with the responsibility of
administering the continuing pharmaceutical education
program.
1.4.4.1.3 Such personnel shall be
qualified for such responsibilities by virtue of experience
and background.
1.4.4.1.4 If an approved provider
presents programs in co-sponsorship with other nonapproved
provider(s), the approved provider has the total
responsibility for assurance of quality of that program. If
more than one approved provider co-sponsors a program,
they have the joint responsibility for assuring quality.
1.4.4.1.5 Administrative
Requirements include:
1.4.4.1.5.1 The development of
promotional materials which state:
1.4.4.1.5.1.1 Educational
objectives.
1.4.4.1.5.1.2 The target audience.
1.4.4.1.5.1.3 The time schedule
of the activities.
1.4.4.1.5.1.4 Cost to the
participant/covered items.
1.4.4.1.5.1.5 Amount of C.E.
credit which will be awarded.
1.4.4.1.5.1.6 Credentials of the
faculty, presenters, and speakers.
1.4.4.1.5.1.7 Self-evaluation
instruments.
1.4.4.1.5.2 Compliance with a
quantitative measure for C.E. credit.
1.4.4.1.5.2.1 The number of
C.E.U.'s to be awarded for successful completion shall be
determined by the provider and reported in the promotional
materials.
1.4.4.1.5.2.2 In cases where the
participants' physical presence is required, C.E. credit will
only be awarded for that portion of the program which
concerns itself with the lecture(s), evaluation and question
and answer segments.
1.4.4.1.5.2.3 The measure of
credit shall be a fifty-minute contact hour. In the case of
other programs such as home study courses, the amount of
credit awarded shall be determined by assessing the amount
of time the activity would require for completion by the
participant if delivered in a more formal and structured
format.
1.4.4.1.5.2.4 The provider must
provide the Board upon request with appropriate records of
successful participation in previous continuing education
activities.
1.4.4.1.5.2.5 The provider must
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
488 FINAL REGULATIONS
present to the participant a form or certificate as
documentation of the completion of the program. The form
must be at least 4" x 6" and no larger than 8 1/2" x 11". That
certificate must show the name, address, and license number
of the participant, the name of the provider, the title and date
of the program, the number of credits earned, and an
authorized signature from the provider.
1.4.4.2 Program Faculty.The selection of
program faculty must be based upon proved competency in
the subject matter and an ability to communicate in order to
achieve a learning experience.
1.4.4.3 Program Content Development
1.4.4.3.1 Such programs shall involve
effective advance planning. A statement of educational goals
and/or behaviors must be included in promotional materials.
Such objectives and goals must be measurable and
accessible to evaluation. In determining program content,
providers shall involve appropriate members of the intended
audience in order to satisfy the educational needs of the
participants. All programs of approved providers should
pertain to the general areas of professional pharmacy
practices which should include, but not be limited to:
1.4.4.3.1.1 The social, economic,
behavioral, and legal aspects of health care,
1.4.4.3.1.2 the properties and
actions of drugs and drug dosage forms,
1.4.4.3.1.3 the etiology,
characteristics, therapeutics and prevention of the disease
state,
1.4.4.3.1.4 pharmaceutical
monitoring and management of patients.
1.4.4.3.2 All ancillary teaching tools
shall be suitable and appropriate to the topic.
1.4.4.3.3 All materials shall be
updated periodically to include up-to-date-practice setting.
1.4.4.3.4 It is the responsibility of the
provider to be sure that the programs are continuously
upgraded to meet educational objectives of the Practice of
Pharmacy. The needs of the pharmacist participant must be
considered in choosing the method of delivery. Innovation in
presentations is encouraged within the limits of budget
resources and facilities. Whatever method of delivery is
used, it must include the participation of the pharmacist as
much as possible within the program, i.e. questions and
answers, workshops, etc.
1.4.4.4 Facilities. The facilities shall be
adequate for the size of the audience, properly equipped (all
appropriate audio/-visual media materials), well lighted and
ventilated to induce a proper learning experience.
1.4.4.5 Evaluation. Effective evaluation of
programs is essential and is the responsibility of both the
provider and participant.
1.4.4.5.1 Participant - Some
evaluation mechanisms must be developed by the provider to
allow the participant to assess his/her own achievement per
the program.
1.4.4.5.2 Provider evaluation - a
provider shall also develop an instrument for the use of the
participant in evaluating the effectiveness of the program
including the level of fulfillment of stated objectives.
1.4.5 1.4.4.6 Criteria for Awarding Continuing
Education Credits. Individual programs must meet the
criteria for provider approval in order to be considered. In
those cases where the provider is not an ACPE provider, nor
a Board of Pharmacy approved provider, a registrant may
complete an application provided by the Board for approval
of individual programs.
1.4.5.1 1.4.4.6.1 In order to receive full credit
for non-ACPE approved programs of one-to-two hour
lengths, evidence of a post test must be presented. An
automatic 25% deduction if no post test presented.
1.4.5.2 1.4.4.6.2 In order to receive full credit
for non ACPE approved programs of three or more hours in
length, evidence of a pre and post test must be presented.
Automatic 25% deduction if no pre and post test presented.
1.4.5.3 1.4.4.6.3 Credit will be assigned only
for the core content of the program which explicitly relates
to the contemporary practice of Pharmacy.
1.4.5.4 1.4.4.6.4 A maximum of 2 credit
hours will be awarded for First Aid, attendance at a Board of
Pharmacy meeting and CPR/BCLS courses one time only
per registration period.
See 4 DE Reg. 1501 3/1/01
1.4.5.5 1.4.4.6.5 Credit for Instructors of
Continuing Education
1.4.5.5.1 1.4.4.6.5.1 Any pharmacist
whose primary responsibility is not the education of health
professionals, who leads, instructs or lectures to groups of
nurses, physicians, pharmacists or others on pharmacy
related topics in organized continuing education or inservice
programs, shall be granted continuing education credit for
such time expended during actual presentation, upon
adequate documentation to the Delaware Board of
Pharmacy.
See 4 DE Reg. 163 (7/1/00)
1.4.5.5.2 1.4.4.6.5.2 Any pharmacist
whose primary responsibility is the education of health
professionals shall be granted continuing education credit
only for time expended in leading, instructing, or lecturing to
groups of physicians, pharmacists, nurses or others on
pharmacy related topics outside his/her formal course
responsibilities (that is, lectures or instructions must be
prepared specifically for each program) in a learning
institution.
1.4.5.5.3 1.4.4.6.5.3 Credit for
presentations of in-service training programs or other
lectures shall be granted only for topics meeting the criteria
for continuing pharmacy education, and shall be granted
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 489
only once for any given program or lecture. (Any topic
completely revised would be eligible for consideration.)
1.4.5.5.4 1.4.4.6.5.4 A maximum of 6
hours (0.6 C.E.U.'s) in this category may be applied toward
fulfilling the total biennial continuing education
requirements.
1.4.5.6 1.4.4.6.6 Credit for On the Job
Training:
1.4.5.6.1 1.4.4.6.6.1 The Board of
Pharmacy does not as a general rule encourage the
submission of "on the job training" for fulfilling the
continuing education requirements. All programs meeting
this definition shall be reviewed on an individual basis.
See 4 DE Reg. 163 (7/1/00)
1.4.5.6.2 1.4.4.6.6.2 All programs that
are submitted for credit must meet the criteria for continuing
pharmacy education.
1.4.5.6.3 1.4.4.6.6.3 No credit shall be
awarded for programs required by an employer for continued
employment of the employee. (Examples OSHA training,
Infection Control Education required by JCAHO.)
1.4.5.6.4 1.4.4.6.6.4 A maximum of 4
hours (0.4 C.E.U.'s) in this category may be applied toward
fulfilling the total biennial continuing education
requirements.
1.5 The Verification of Continuing Education - A
pharmacist shall complete the required continuing education
and submit the signed renewal form with appropriate fees to
the Board of Pharmacy. A pharmacist shall retain the
supporting documentation, such as certification of
completion for a minimum of six years. The Board will
randomly audit the documentation of at least 10% of
licensed pharmacists every biennial term. Supporting
documentation may be requested for up to six years.
Pharmacists who were not selected for audit do not send
supporting documentation to the Board. Submitting a false
documentation may constitute grounds for discipline under
24 Del.C. §2518 (a) (1).
See 4 DE Reg. 1502 (3/1/01)
1.6 Re-Entry - A pharmacist may have his/her license
reinstated by completing the following requirements:
1.6.1 Payment of any back fees;
1.6.2 Successfully obtaining a grade of 75 on an
examination on the Practice of Pharmacy if the pharmacist
has not practiced in three years;
1.6.3 Submission of evidence of completion of
at least 20 hours of approved C.E. from the date of
application for reinstatement if the pharmacist has practiced
within the last three years.
1.7 Reciprocal Requirements
1.7.1 The Board will accept an applicant for
reciprocity provided that his practical pharmacy experience
and his experience in the practice after licensure is at least
equivalent to the practical pharmacy experience required by
the Delaware Board.
1.7.2 Candidates for reciprocity licensure,
except those who have been licensed by examination within
the last year, must have practiced as a registered pharmacist
for at least one year during the last three years or shall be
required to pass the Board of Pharmacy's Practice of
Pharmacy examination or an examination deemed equivalent
by the Board and obtained a minimum grade of 75 percent.
1.7.3 Reciprocity applicants who took
examinations after June 1, 1979, must have passed the
National Association of Boards of Pharmacy standard
examination or an examination deemed equivalent by the
Board and obtained scores required for applicants for
licensure by examination.
1.7.4 All reciprocal applicants must take a
written jurisprudence examination and obtain a minimum
grade of 75 percent. Jurisprudence examinations will be
given at such times as determined by the Board. In order to
be eligible to take the jurisprudence examination, all
necessary paperwork must be completed and received by the
Board office at least 10 days prior to the next scheduled
examination.
1.7.5 Applicants who are licensed by reciprocity
must begin accruing continuing education units at a rate of
1.25 hours/per month beginning with the month of licensure.
Regulation 1.2 revised 10/11/96
Regulation 1.3.2 revised 2/6/97
Regulation 1.3.2 deleted, 1.3.3.1 amended, 1.4 amended
Effective date 10/11/98
2.0 Grounds for Disciplinary Proceeding
2.1 Unprofessional conduct shall include but is not
limited to the following act(s) of a pharmacist pursuant to 24
Del.C. §2518(A):
2.1.1 Knowingly engaging in any activity which
violates State and Federal Statutes and Regulations
governing the practice of Pharmacy;
2.1.2 Knowingly dispensing an outdated or
questionable product;
2.1.3 Knowingly dispensing the cheaper product
and charging third party vendors for a more expensive
product;
2.1.4 Knowingly charging for more dosage units
than is actually dispensed;
2.1.5 Knowingly altering prescriptions or other
records which the law requires the pharmacies or
pharmacists to maintain;
2.1.6 Knowingly dispensing medication without
proper authorization;
2.1.7 Knowingly defrauding any persons or
government agency receiving pharmacy services;
2.1.8 Placing a signature on any affidavit
pertaining to any phase of the practice of pharmacy which
the pharmacist knows to contain false information.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
490 FINAL REGULATIONS
2.1.9 Fraudulently altering or forging the
contents of prescriptions;
2.1.10 Payment of money or the providing of free
services to a third party in return for the third party's referral
of patients to the pharmacist or pharmacy;
2.1.11 Dispensing any legend drugs either for
personal use or for use by another person without a valid
order from a prescriber. Valid prescription means that it is
not only written correctly, but is for a medical use (i.e.
prescriptions written "as directed" are prohibited);
2.1.12 Unauthorized substitution;
2.1.13 Dispensing medications which are not
approved for marketing by the Food and Drug
Administration nor approved for marketing by State law;
2.1.14 Continuous failure to correct violations of
Statutes and Regulations noted in Board of Pharmacy
communication;
2.1.15 Knowingly allowing persons who are not
registered pharmacists to dispense medication without
proper supervision;
2.1.16 Knowingly committing a fraudulent act.
This would include destroying or altering any records such
as prescriptions, profiles, third party vouchers and receipts;
2.1.17 Knowingly misbranding a drug by using a
brand name when a generic is dispensed;
2.1.18 Practicing under the influence of drugs or
alcohol;
2.1.19 The placement of an advertisement which
the pharmacist knows to be false or misleading;
2.1.20 Knowingly breaching confidentiality of
the patient/pharmacist relationship by supplying information
to unauthorized persons;
2.1.21 Engaging in activities that would discredit
the profession of pharmacy;
2.1.22 Attempting to circumvent the patient
counseling requirements or discouraging the patients from
receiving patient counseling concerning their prescription
drug orders.
2.1.23 Using facsimile equipment to circumvent
documentation, authenticity, verification or other standards
of pharmacy or drug diversion. (Effective 2/29/96)
See 4 DE Reg. 163 (7/1/00)
3.0 Pharmacy Requirements
3.1 Pharmacist in Charge
3.1.1 Application for permit to operate a
pharmacy in the State of Delaware must be on a form
approved by the Board. The form shall include the statement
to be signed by the pharmacist in charge, "I understand that I
am responsible for conducting and managing the
prescription department in compliance with applicable State
and Federal laws."
3.1.2 The Board interprets the responsibilities of
the Pharmacist-in-Charge to include, but not be limited to
the following:
3.1.2.1 Maintain necessary pharmaceutical
equipment and reference texts in accordance with the State
Board of Pharmacy requirements.
3.1.2.2 Maintain records required by the
Uniform Controlled Substances Act and other relevant State
and Federal regulations.
3.1.2.3 Maintain proper security of particular
pharmacy operation during and after normal business hours.
3.1.2.4 Establish procedures within operation
that maintain standard of practice as it relates to the
dispensing of pharmaceuticals. These procedures shall
include proper supervision of [supportive personnel
pharmacy technicians] and delegation of authority to
another pharmacist when not on duty.
3.1.2.5 The pharmacist on duty is directly
responsible for his own actions.
3.1.2.6 Notify the Board of Pharmacy in
writing within 10 days of termination as pharmacist-incharge.
3.2 Owner's Affidavit. The owner or owners and, in the
case of a corporation, an authorized official of the
corporation must present an affidavit properly notarized
containing the statement, "I hereby swear or affirm that the
foregoing statements are correct and do hereby agree to
abide by the pharmacy laws of the State of Delaware and to
all rules and regulations of the Delaware State Board of
Pharmacy." The Board must be notified within 10 days of
change of ownership.
3.3 Equipment and Reference Materials. Each
pharmacy shall have the following equipment and current
edition of the following texts:
3.3.1 References:
3.3.1.1 Delaware Laws and Regulations
governing Pharmacy.
3.3.1.2 Federal Regulations covering the
Food and Drug Act, and Controlled Substances Act (If
available in another text purchase is not necessary)
3.3.1.3 USP-DI (All volumes and
supplements)
3.3.1.4 One (minimum) of the following texts
from each category:
3.3.1.4.1 Drug Interactions
3.3.1.4.1.1 Facts and Comparisons
Drug Interactions (Metaphor)
3.3.1.4.1.2 Drug Interactions
3.3.1.4.1.3 Hansten's Drug
Interactions
3.3.1.4.1.4 APhA Evaluation of
Drug Interactions
3.3.1.4.2 Drug Information:
3.3.1.4.2.1 Facts and Comparisons
3.3.1.4.2.2 American Hospital
Formulary Service
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 491
3.3.1.4.2.3 Pharmindex
3.3.2 Equipment
3.3.2.1 Prescription Scale, Class a Set of
Metric Weights
3.3.2.2 Graduates, (must be glass) Metric
One of Each:
30 ml
60 ml
125 ml
500 ml
(or Set with both metric and Apothecary
Graduations may be used)
3.3.2.3 Mortars and Pestles
1 8 ounce glass
1 8 ounce wedgewood
3.3.2.4 Filter Paper
3.3.2.4 Prescription/physician Order Files
3.3.2.5 Two Spatulas
3.3.2.6 One Glass Funnel
3.3.2.7 One Glass Stirring Rod
3.3.2.8 Ointment Slab or Papers
3.3.2.9 Purified Water
Each Pharmacy shall have such additional
equipment as is necessary to perform a specific procedure.
All equipment must be clean and must be
maintained in such a manner that allows the pharmacist to
accurately weigh, measure and compound ingredients.
3.4 Physical Facilities. Have sufficient size, space,
sanitation, and environmental control for adequate
distribution, dispensing and storage of drugs and devices.
Such facilities shall include:
3.4.1 A dispensing area of adequate size and
space for proper compounding, dispensing and storage of
drugs and devices, to ensure the safety and well being of the
public and pharmacy personnel.
3.4.2 Sufficient environmental control, i.e.
lighting, ventilation, heating and cooling to maintain the
integrity of drugs and devices. The area in which drugs and
devices are stored shall be accurately monitored using
control devices to maintain room temperature between 59° 
and 86° Fahrenheit.
3.4.3 The pharmacy department or prescription
area must contain a sink with hot and cold running water. It
must be large enough to accommodate the equipment
required by the Board so that the utensils can be properly
washed and sanitized.
3.4.4 Suitable refrigeration with appropriate
monitoring device. Refrigerators and freezers (where
required) will be maintained at the USP/NF range:
Refrigerator - 36° to 46° Fahrenheit
Freezer - plus 4° to minus 14° Fahrenheit.
A sign with letters not less than 3/4" in height
in the vicinity of the prescription department visible to the
public which shows the name of the pharmacists employed
at that pharmacy or the name of the pharmacist on duty.
3.5 Building Standards. An application to operate a
new pharmacy must include (3) copies of blueprints drawn
to scale of the proposed prescription department. The
blueprints must include the following:
3.5.1 The requirements listed in §2534(F)(1)
through (4).
3.5.2 A view of the partition surrounding the
prescription department showing a five (5) foot height
requirement measured from the floor. A section or sections
totaling a maximum of twelve (12) ft. in length and at least
three (3) ft. in height will be acceptable in all situations. The
area(s) must be secured to the five (5) ft. level when the
pharmacist or designated responsible person is not in the
pharmacy department.
3.5.3 A partitioned area which assures patient
privacy will be provided to facilitate counseling. This area
must afford the patient privacy from auditory detection by
any unauthorized person or persons. The minimum
requirement would be a 9 square foot partitioned area.
3.5.4 The blueprints shall include the location of
the sink, all doors, storage room, approved Schedule II
controlled substance safe or cabinet, and the method of
securing the prescription department from floor to ceiling,
when the prescription department is closed and the
remainder of the store is open.
3.5.5 The blueprints must include the type of
alarm system to be installed, and the name, address and
phone number of alarm provider. The alarm system, as
required by Regulation 5 of the Delaware Controlled
Substance Act, must be reviewed and approved for
compliance by the Office of Narcotics and Dangerous
Drugs.
3.5.6 The above requirements shall also apply
for any remodeling or change of location of the prescription
department. The pharmacist-in-charge or applicant for
permit must submit the blueprint requirements to the
Delaware Board of Pharmacy and the Office of Narcotics
and Dangerous Drugs prior to any construction and at least
15 days prior to the next scheduled Board of Pharmacy
meeting for its review.
See 2 DE Reg. 683 (10/1/98)
3.6 Security. When the pharmacist is off duty and the
operation is open for business, the pharmacy department
shall be physically or electronically secured from floor to
ceiling. The partitioned off section required by 24 Del.C.
§2534 must be five feet high measured from the floor. A
conspicuous sign with letters not less than three inches in
height, reading "PRESCRIPTION LABORATORY
TEMPORARILY CLOSED, NO PROFESSIONAL
SERVICES RENDERED," or words of similar import, must
be posted in the front section of the operation or in front of
the prescription area, room or partitioned off section where it
can be seen by the public.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
492 FINAL REGULATIONS
3.7 Board Interview. Applicants for permit to operate a
pharmacy in the State of Delaware must appear before the
Board for an interview. The owner or authorized official
must be present in addition to the pharmacist-in-charge.
Whenever there is a change of pharmacist-in-charge, if that
person has never held that position in the State of Delaware,
he/she must appear before the Board for an interview within
ninety days after assuming the position.
Regulation 3.5.2 revised 6/16/97
Regulation 3.5.6 revised Effective date 10/11/98
4.0 Pharmacy Closing Procedure
The Executive Secretary of the Delaware State Board of
Pharmacy shall be notified by letter via certified mail, or
hand delivered written notification of the intent to close a
licensed Delaware pharmacy. The Executive Secretary shall
be notified at least 14 days in advance of the closing date. In
the event of death of the owner/pharmacist-in-charge, the
Executive Secretary will be notified immediately.
The closing procedure will be completed by a Delaware
licensed pharmacist-in-charge or in the event of death, a
Delaware licensed pharmacist designated to perform the
closing procedure. Should the permit to operate a pharmacy
be revoked or suspended by the Delaware State Board of
Pharmacy, the procedure following such action will be
directed by the Board. The agents of the Delaware Office of
Narcotics and Dangerous Drugs will enforce this regulation
under the authority of Chapter 25, Section 2535.
4.1 Permanent Closing of a Pharmacy
4.1.1 Board Notification:
4.1.1.1 Certified letter at least 14 days prior to
the planned closing to the Executive Secretary of the
Delaware Board of Pharmacy.
4.1.1.2 In the event of death of owner/
pharmacist-in-charge, notification immediately to the
Executive Secretary of Delaware Board of Pharmacy.
4.1.1.3 In case of fire or water damage, notify
the Executive Secretary of the Delaware Board of Pharmacy
immediately.
4.1.2 Required Information to be submitted to
the Executive Secretary of the Delaware Board of Pharmacy:
4.1.2.1 Name, address and phone number.
4.1.2.2 Pharmacy permit and Delaware
Controlled Substance registration number and D.E.A.
registration numbers.
4.1.2.3 Name of pharmacist-in-charge
responsible for closing.
4.1.2.4 Date of closing.
4.1.2.5 Name, address, phone number of
licensed pharmacy to which prescription drugs, (including
controlled substances) prescription files and patient profiles
will be transferred.
4.1.2.6 A closing inventory signed and dated
of all controlled substances to be sent to the Office of
Narcotics and Dangerous Drugs for their records.
4.1.2.7 Name, address, and phone number of
custodian of controlled substance records (i.e. invoices, etc.)
for the two-year period after closing as required by 21 CFR.
4.1.3 Public Notification:
4.1.3.1 A publication in a local newspaper for
one week informing the public the pharmacy is closing on a
specific date and the name of the pharmacy to which the
prescriptions will be transferred.
4.1.3.2 Name and phone number of person to
contact in emergency after closing of pharmacy.
4.1.3.3 A sign posted in the window of
pharmacy 14 days prior to closing and to remain 14 days
after closing informing the public where prescriptions are
being transferred.
4.1.3.4 Remove all signs within 30 days of
closing that refer to, "pharmacy," "apothecary," "drugs" or
"medicine."
4.1.4 Permits and registration to be surrendered
upon closing:
4.1.4.1 Pharmacy permit (Executive
Secretary, Board of Pharmacy)
4.1.4.2 Delaware Controlled Substance
certificate (Delaware Office of Narcotics & Dangerous
Drugs).
4.1.4.3 Federal Controlled Substance
certificate (D.E.A.).
4.1.4.4 All unused 222 Schedule II order
forms (D.E.A.).
4.1.5 Sale of prescription drugs:
Should the pharmacy be sold, including
prescription drugs, or if the prescription drugs are sold
separately, the Office of Narcotics & Dangerous Drugs must
be notified to verify that the buyer is currently licensed to
possess these drugs.
4.1.6 All above procedures must be
accomplished within 7 days after closing or upon discretion
of the Executive Secretary. Drugs must be properly secured
in accordance with all laws and regulations until they are
removed.
4.2 Temporary Closing of a Pharmacy
4.2.1 The Board office must be notified
according to 24 Del.C. §2528.
4.2.2 Board notification must include the
following:
4.2.2.1 The exact date the pharmacy will be
closing.
4.2.2.2 The name, address and telephone
number to be used in an emergency.
4.2.3 A public notice must be posted in a highly
visible place within the prescription department at least 5
days prior to the temporary closing of a pharmacy (24 Del.C.
§2528(B)) and also on a window visible to the public from
outside the store. The notice must state:
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 493
4.2.3.1 Dates the pharmacy will be closed.
4.2.3.2 A contact number in case of
emergency.
4.2.4 If the closing extends past the date given
to the Board office, the pharmacy would automatically be
put into the status of a permanently closed pharmacy and
procedure established by Board regulation must be followed.
5.0 Dispensing
5.1 Definitions
"Agent" - An employee of the pharmacy
supervised by the pharmacist or a person acting on behalf of
the ultimate user.
"Automated Data Processing System (ADP)" - A
system utilizing computer software and hardware for the
purposes of record keeping.
"Cell" - Any container which holds the medication
for automatic dispensing.
["Centralized Prescription Processing - The
processing by a Pharmacy of a request from another
Pharmacy to fill or refill a prescription drug order or to
perform processing functions such as dispensing, DUR,
clams adjudication, refill authorizations and therapeutic
interventions.
"Certified Pharmacy Technician" - A technician
who has passed a national certification program
approved by the Board and maintains certification.]
"Common Data Base" - A file or data base created
by ADP that enables authorized users to have common
access to this file regardless of physical location.
"Compounding" - The art of the extemporaneous
preparation and manipulation of drugs as a result of a
practitioner's prescription order or initiative based on the
practitioner/patient/pharmacist relationship in the course of
professional practice, including the reconstitution of
powders for administration and the preparation of drugs in
anticipation of drug orders based on routine, regularly
observed prescribing patterns. Pharmaceutical compounding
must be in compliance with FFDCA Section 503A and any
regulations promulgated by FDA concerning compounding,
pertaining to this section.
See 3 DE Reg. 431 (9/1/99)
"Computer" - Programmable electronic device,
capable of multifunctions including but not limited to
storage, retrieval and processing of information.
"Controlled Substance" - Those drug items
regulated by Federal (CSA of 1970) and/or State Controlled
(dangerous) Substances Act.
"CRT" - Cathode Ray Tube used to impose visual
information on a screen.
"Delivery" - The transfer of a dispensed
prescription to the ultimate user (patient) or his/her agent.
"[Dispense or] Dispensing" - To furnish or deliver
a drug to an ultimate user by or pursuant to the lawful order
of a practitioner; including the preparation, packaging,
labeling or compounding necessary to prepare the drug for
that delivery. The preparation and delivery of a
prescription drug pursuant to a lawful order of a
practitioner in a suitable container appropriately labeled
for subsequent administration or use by a patient or
other individual entitled to receive the prescription
drug.]
"Downtime" - That period of time when a
computer is not operable.
"Facsimile (FAX) Prescription" - A facsimile
prescription is an order which is transmitted by an electronic
device over telephone lines which sends an exact copy image
to the receiver (pharmacy).
"Final Container" – is that which holds the article,
designed to hold a quantity of drug product intended for
administration as a single dose, multiple dose, or a single
finished device intended for use promptly after the container
is opened.
"New Medication" - A medication not previously
dispensed by the pharmacy for the ultimate user.
"Patient Counseling" - The offer to discuss the
patient's prescription made by the pharmacist or the
pharmacist's designee in a face-to-face communication with
the patient or his/her agent, unless in the professional
judgment of the pharmacist it is deemed impracticable and in
such instances, it would be permissible for the offer to
counsel to be made through alternative means.
"Pertinent Patient Medication Information" -
Information which increases the patient's ability to minimize
the risks and enhance the benefits of drug use. The type of
information the pharmacist should consider is contained in
the latest edition of USP DI "Advice for the Patient."
["Supportive personnel" "Pharmacy
Technician"] - A person who is not registered as an intern or
pharmacist with the Board who may perform tasks as
authorized by this Regulation.
"Prescriber" - A practitioner authorized to
prescribe and acting within the scope of this authorization.
"Prescription" - An order for medication which is
dispensed to or for an ultimate user, but does not include an
order for medication which is dispensed for immediate
administration to the ultimate user, (e.g., an order to dispense
a drug to a bed patient for immediate administration in a
hospital is not a prescription.) A written order from a
practitioner authorized to prescribe and acting within the
scope of this authorization, (other terminology: prescription
order) or a telephone order reduced to writing by the
pharmacist.
"Printout" - A hard copy produced by computer
that is readable without the aid of any special device.
"Reduced to Writing"
For new prescriptions this means the
preparation of a paper document containing all the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
494 FINAL REGULATIONS
information required for a written prescription including the
State requirement (Section 2553)for drug product selection;
For a refill authorization, it may be handled as
a new prescription as in above, or by placing on the original
prescription or the patient profile (whichever document is
consistently used to document refills) the date, a statement
"O.K. for 'x' number of additional refills", or words of
similar import, and the pharmacist's initials. In no instance,
shall the refill authorizations exceed the legal limits
established by State and Federal laws.
If the prescriber authorizing additional refills
differs from the Prescriber whose name appears on the
signature line of the original prescription, then that
authorization is considered a new prescription and must be
handled as described above.
"Regulatory Agency" - Any Federal or State
agency charged with enforcement of pharmacy or drug laws
and regulations.
"Stop Date" - A date established by an appropriate
authority which indicates when medication will no longer be
administered or dispensed in the absence of a specific time
period directed by the prescriber.
5.2 The practice of dispensing shall include, but not be
limited to the following acts: which shall be performed only
by a pharmacist, or a pharmacy intern or student
participating in an approved College of Pharmacy
coordinated, practical experience program.
5.2.1 Receive oral prescriptions and reduce
them immediately to writing.
5.2.2 Certification of the prescription order -
(This involves authenticating the prescription, confirming
proper dosage and instructions, and reviewing for
incompatibility, etc.)
5.2.3 Record refill dates and initials of the
dispensing pharmacist on the prescription (or on another
appropriate uniformly maintained readily retrievable record
such as the medication records.)
5.3 Patient Counseling
5.3.1 Before dispensing or delivering a new
medication to a patient or his or her agent, a pharmacist or
pharmacy intern under the direct supervision of the
pharmacist, shall conduct a prospective drug review. A
pharmacist or pharmacy intern may conduct a prospective
drug review before refilling a prescription to the extent
deemed appropriate by the pharmacist or pharmacy intern in
his/her professional judgment. Such review shall include
screening for potential drug therapy problems due to
therapeutic duplication, drug-drug interactions, including
serious interactions with over-the-counter drugs, drugdisease
contraindications, if disease is known, incorrect drug
dosage or duration of drug treatment, drug-allergy
interactions, and clinical abuse or misuse based on available
information received by the pharmacist.
5.3.2 Except when a prescriber requests that
information regarding a prescribed drug not be given to a
specific patient, a pharmacist or a pharmacy intern under the
direct supervision of a pharmacist shall, with each new
medication dispensed, provide counseling to the patient or
the patient's agent on pertinent medication information. The
counseling may include, but not be limited to the following:
5.3.2.1 the name and description of the
prescribed drug;
5.3.2.2 the dosage and the dosage form;
5.3.2.3 the method and route of
administration;
5.3.2.4 the duration of the prescribed drug
therapy;
5.3.2.5 any special directions and precautions
for preparation, administration, and use by the patient that
the pharmacist determines are necessary;
5.3.2.6 common severe side effects or
adverse effects or interactions and therapeutic
contraindications that may be encountered, how to avoid
them, and what actions should be taken if they occur;
5.3.2.7 patient techniques for self-monitoring
of the drug therapy;
5.3.2.8 proper storage;
5.3.2.9 prescription refill information;
5.3.2.10 the action to be taken in the event
of a missed dose; and
5.3.2.11 current over-the-counter
medication use.
5.3.3 This section does not apply to a
pharmacist dispensing drugs for inpatient use in a hospital or
other institution where the drug is to be administered by a
nurse or other appropriate health care provider.
5.3.4 Nothing in this section requires a
pharmacist or pharmacy intern under the direct supervision
of a pharmacist, to provide patient counseling when a patient
or the patient's agent refuses the counseling. There must be a
record in a uniform place that documents a patient's
acceptance or refusal of counseling. The record must
indicate who made the offer to counsel.
5.3.5 If the dispensed prescription is delivered
by an agent of the pharmacy when the pharmacist is not
present (i.e. home delivery, pharmacist off duty and nonresident
pharmacies) written or printed information shall be
included with the prescription. The patient or his/her agent
shall be informed that the pharmacist will be available for
consultation.
5.3.6 The pharmacist shall in his/her
professional judgment refill prescriptions in keeping with the
number of doses ordered and the directions for use.
5.3.7 The pharmacist who dispenses the original
prescription shall hand-sign or initial the prescription.
Initials mechanically or electronically generated are
acceptable in lieu of the above provided that the pharmacist
verifies either on a daily printout or in a bound log book
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 495
daily that the information on the prescription is correct. The
verification must be hand-signed and dated by the
pharmacist.
5.4 Supportive personnel [Pharmacy Technician]
5.4.1 Qualifications and training
5.4.1.1 The pharmacist-in-charge is
responsible for ensuring proper training of all supportive
personnel [both classes of pharmacy technicians.] The
actual training may be delegated to a pharmacist or other
trained supportive personnel [pharmacy Technician].
5.4.1.2 The areas of training required are to be
determined by the pharmacist-in-charge and will be
appropriate to the practice site and responsibilities assigned
to the supportive personnel [pharmacy Technician]. Areas
of training shall include:
5.4.1.2.1 general drug and dosage
form knowledge
5.4.1.2.2 medical terminology
5.4.1.2.3 pharmaceutical calculations
5.4.1.2.4 prescription labeling
requirements
5.4.1.2.5 general filling/dispensing
responsibilities
5.4.1.2.6 patient profile record system
requirements
5.4.1.2.7 requirements for patient
counseling
5.4.1.2.8 confidentiality
5.4.1.2.9 safety practices
5.4.1.2.10 inventory functions
5.4.1.2.11 knowledge of applicable
State and Federal Statutes and Regulations
5.4.1.2.12 other site-specific
parameters
5.4.1.3 The general content of the training
program must be maintained in the policy and procedure
manual.
5.4.1.4 Documentation of successful training
in specific areas by oral or written evaluation will be
maintained and will be available for inspection by the Board
of Pharmacy.
5.4.2 Supervision. Supportive personnel must be
supervised by a registered pharmacist who will be
responsible for the activities of these persons.
[5.4.2.1 The registered pharmacist shall
directly supervise either class of pharmacy technician.
The registered pharmacist will be responsible for the
activities of the pharmacy technicians and may
determine their duties performed within the scope of this
Regulation.
5.4.2.2 There must be written
documentation in the pharmacy from the pharmacist-onduty
permitting a certified pharmacy technician to
perform any of the activities allowed by this Regulation.
5.4.2.3 The final check by the
pharmacist is made after the medication is placed in the
final container prior to dispensing and administration to
the patient. There will be a final check by a licensed
pharmacist prior to the dispensing and administration,
except where the Board of Pharmacy grants, in writing,
an exemption for good cause shown.]
5.4.3 Activities allowed [for a Pharmacy
Technician]
5.4.3.1 Supportive personnel will be allowed
to perform only those duties permitted by this regulation.
5.4.3.2 Supportive personnel may aid in the
dispensing of prescriptions as authorized in Section 2513
under the supervision of a pharmacist by performing the
following tasks:
5.4.3.2.1 Obtaining the medication
from stock.
5.4.3.2.2 Typing the label after the
pharmacist has interpreted the directions.
5.4.3.2.3 Counting, pouring and
selecting prefabricated medications and selecting individual
prepackaged unit dose medication provided that these are not
in conflict with the state and federal law (Federal
Comprehensive Controlled Substances Act) and that a final
check by the pharmacist is made after the medication is
placed in the final container prior to dispensing and
administration to the patient. There will be a final check by
a licensed pharmacist prior to dispensing and administration,
except where the Board of Pharmacy grants, in writing, an
exemption for good cause shown.
[5.4.3.1 Obtain medication from stock.
5.4.3.2 Counting and pouring of
medication.
5.4.3.3 Prepackaging of bulk medication.
5.4.3.4 Entering prescription or patient
profile information into the computer.
5.4.3.5 Generating a prescription label.
5.4.3.6 Reconstitution of medications.
5.4.4 Additional activities allowed for a
Certified Pharmacy Technician
5.4.4.1 Obtain or request refill and new
authorizations from practitioners’ offices.
5.4.4.2 Obtain or give copies of
prescriptions to or from other pharmacies.
5.4.4.3 Compound prescriptions including
anti-neoplastic agents, according to regulation.
5.4.4.4 Provide drug information that is
quoted directly from any reference material available on
site that is approved by the supervising pharmacist.]
[5.4.5] 5.4.3.3 Compounding is the
responsibility of the pharmacist. or [The] pharmacy intern[/
certified pharmacy technician may perform
compounding functions] under the direct supervision of
the pharmacist. All compounding must be in compliance
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
496 FINAL REGULATIONS
with FFDCA Section 503A and any regulations promulgated
by FDA concerning compounding pertaining to this section.
The pharmacist may utilize the assistance of supportive
personnel [pharmacy Technician] if the following is
performed:
[5.4.5.1] 5.4.3.3.1 The formulation is
developed by the pharmacist before proceeding with the
compounding.
[5.4.5.2] 5.4.3.3.2 The compounding
ingredients are checked by the pharmacist before proceeding
with the compounding.
[5.4.5.3] 5.4.3.3.3 Every weight and
measurement is checked by the pharmacist before
proceeding with the compounding.
[5.4.5.4] 5.4.3.3.4 The finished product is
checked by the pharmacist before dispensing.
[5.4.5.5] 5.4.3.3.5 A log is maintained
showing the identity of the person actually compounding the
medication and the identity of the pharmacist who has
performed [the final check.] each of the checks indicated
above for each step of the procedure. If policies and
procedures are in place ensuring adequate checks by the
pharmacist per regulation, the requirement for a log will be
waived.
5.4.3.4 Only supportive personnel or persons
being trained as supportive personnel as required by this
regulation, may perform the activities defined by this
regulation.
5.5 Automatic Dispensing Devices. If any automatic
counting device is used by a pharmacy, each cell shall have
clearly displayed thereon, the date filled, the name of the
drug, the batch number, the manufacturer's name, and the
expiration date of the particular batch number. No drug can
be added to the cell until the present supply is depleted.
5.6 Authorization for renewal of prescriptions. A
prescription written for medication which, pursuant to State
and Federal law, may be sold, dispensed, or furnished only
upon prescription, shall not be renewed without specific
authorization of the prescriber. Refills beyond one year of
the date of the original prescription shall not be dispensed
without further authorization of the prescriber.
5.7 Mandatory Patient Profile Record System
5.7.1 A patient profile record system must be
maintained at all pharmacies for persons for whom
prescriptions are dispensed. The patient profile system shall
be devised so as to entitle the immediate retrieval of
information necessary to enable the dispensing pharmacist to
identify previously dispensed medication at the time a
prescription is presented for dispensing.
[5.7.2] 5.7.1.2 The following information shall be
recorded by a pharmacist or designee:
[5.7.2.1] 5.7.1.2.1 The family name and
first name of the person for whom the medication is intended
(the patient);
[5.7.2.2] 5.7.1.2.2 The address of the
patient and phone number;
[5.7.2.3] 5.7.1.2.4 The patient's age, or date
of birth, and gender;
[5.7.2.4] 5.7.1.2.4 The original date the
medication is dispensed pursuant to the receipt of a
physician's prescription;
[5.7.2.5] 5.7.1.2.5 The number or
designation identifying the prescription;
[5.7.2.6] 5.7.1.2.6 The prescriber's name;
[5.7.2.7] 5.7.1.2.7 The name, strength,
quantity, directions and refill information of the drug
dispensed;
[5.7.2.8] 5.7.1.2.8 The initials of the
dispensing pharmacist and the date of dispensing medication
as a renewal (refill) if said initials and such date are not
recorded on the original prescription;
[5.7.2.9] 5.7.1.2.9 If the patient refuses to
give all or part of the required information, the pharmacist
shall so indicate and initial in the appropriate area.
[5.7.2.10] 5.7.1.2.10 Pharmacist comments
relevant to the patient's drug therapy, including any other
information peculiar to the specific patient or drug.
5.7.3 The pharmacist or pharmacy intern[/
certified pharmacy technician] under the direct
supervision of a pharmacist shall attempt to ascertain and
shall record any allergies and idiosyncrasies of the patient
and any chronic disease states and frequently used over-thecounter
medication as communicated to the pharmacist by
the patient. If the answer is none, this must be indicated on
the profile.
5.7.4 Upon receipt of a new prescription, a
pharmacist or pharmacy intern[/certified pharmacy
technician] under the direct supervision of a pharmacist
must examine the patient's profile record before dispensing
the medication to determine the possibility of a harmful drug
interaction or reaction. Upon recognizing a potential
harmful reaction or interaction, the pharmacist shall take
appropriate action to avoid or minimize the problem which
shall, if necessary, include consultation with the physician.
5.7.5 A patient profile record must be
maintained for a period of not less than one year from the
date of the last entry in the profile record unless it is also
used as a dispensing record.
5.8 Exchange of Valid Non-Controlled Prescriptions
Between Pharmacies
5.8.1 Verbal Exchange of Prescriptions - When
a pharmacy receives a verbal request for a prescription
transfer, it may be honored provided that:
5.8.1.1 The request comes from a registered
pharmacist, [intern or a certified pharmacy technician.
The certified pharmacy technician may only take copies
for non-controlled substance prescriptions.]
5.8.1.2 The copy is immediately reduced to
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 497
writing and contains the information required on a written
prescription as listed in Regulation 5.0, and includes the first
and last name of the pharmacist transmitting the information.
5.8.1.3 The prescription used for refills must
be clearly identified as a copy.
5.8.1.4 The copy shows the date and the file
number of the original prescription and indicates the name
and address of the pharmacy providing the copy.
5.8.1.5 The copy shows the last date of
dispensing.
5.8.1.6 Only the actual number of refills
remaining are indicated.
5.8.1.7 A notation indicating a copy was
given and refills are no longer valid must be placed on either
the original prescription or patient profile. The document
used must be the same one used for the recording of refills
per the pharmacy's policy.
5.8.2 A copy prepared or transmitted that does
not meet the requirements of this Regulation is deemed to be
an invalid prescription.
5.8.3 Written copies of prescriptions are for
information only and are not valid for refilling.
5.9 Automated Data Processing Systems
5.9.1 Profiles. When ADP's are used to
maintain patient profile records, all the requirements of
Delaware Pharmacy Regulation 5.0 must be met.
5.9.2 Prescription (Drug Order) Information.
Prescription information (drug order) shall include, but not
be limited to:
5.9.2.1 Original dispensing date
5.9.2.2 Name and address of patient (patient
location if in an institution)
5.9.2.3 Name of prescriber
5.9.2.4 DEA number of prescriber in the case
of a controlled substance
5.9.2.5 Name, strength, dosage form and
quantity, (or Stop Date), and route of administration if other
than oral form of drug prescribed
5.9.2.6 Renewals authorized
5.9.2.7 Directions of use for patient
5.9.3 Records of Dispensing. Records of
dispensing for original and refill prescriptions are to be made
and kept by pharmacies for three years. Information must be
immediately accessible for a period of not less than one year
from the date of last entry. Information beyond one year but
up to three years from the date of last entry may be
maintained off-line but must be produced no later than five
days upon request from proper authorities. The information
shall include, but not be limited to:
5.9.3.1 Quantity dispensed
5.9.3.2 Date of dispensing
5.9.3.3 Serial Number (or equivalent if an
institution)
5.9.3.4 The identification of the pharmacist
responsible for dispensing
5.9.3.5 Record of renewals to date
5.9.3.6 Name and strength of medicine
5.9.4 Record Retrieval (Documentation of
Activity). Any such ADP system must provide via CRT
display and or hard copy printout a current history of all
authorized prescription activity. This information shall
include, but not be limited to:
5.9.4.1 Serial number of prescription
(equivalent if an institution)
5.9.4.2 Date of processing
5.9.4.3 Quantity dispensed
5.9.4.4 The identification of the pharmacist
responsible for dispensing
5.9.4.5 Medication dispensed
5.9.5 Auxiliary Record keeping System. An
auxiliary record keeping system shall be established for the
documentation of renewals if the ADP is inoperative for any
reason. The auxiliary system shall insure that all renewals
are authorized by the original prescription and that the
maximum number of renewals are not exceeded. When the
ADP is restored to operation, the information regarding
prescriptions dispensed and renewed during the inoperative
period shall be entered into the automated data processing
system.
5.9.6 Common Data Base. Two or more
pharmacies may establish and use a common data file or
base to maintain required or pertinent dispensing
information. Pharmacies using such a common file are not
required to transfer prescriptions or information for
dispensing purposes between or among pharmacies
participating in the same common prescription file or data
base; provided however, any such common file must contain
complete and adequate records of such prescription and
renewals dispensed. Where common data base is used, this
shall not be considered a transfer under Board Regulation
5.0 for non-controlled substances.
5.9.7 Transfer of Prescriptions via ADP. A
pharmacist may transfer a prescription electronically (ADP)
for Schedule III, IV, or V controlled substances to another
pharmacy for renewal purposes in accordance with Title 21,
Code of Federal Regulations Section 1306.26. A pharmacist
may transfer a prescription electronically (ADP) for noncontrolled
drug for renewal purposes in accordance with
current State Regulations.
5.9.7.1 Any pharmacy using ADP must
comply with all applicable State and Federal regulations.
5.9.7.2 A pharmacy shall make arrangements
with the supplier of data processing services or materials to
assure that the pharmacy continues to have adequate and
complete prescription and dispensing records if the
relationship with such supplier terminates for any reason. A
pharmacy shall assure continuity in maintenance of records.
5.9.7.3 The computer record shall reflect the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
498 FINAL REGULATIONS
fact that the prescription order has been transferred, the
name of the pharmacy to which it was transferred, the date of
transfer, the name of the pharmacist transferring
information, and any remaining refill information, if
applicable.
5.9.7.4 The pharmacist receiving the
transferred prescription drug order shall reduce it to writing
with the following information:
5.9.7.4.1 Write the word
"TRANSFER" on the face of the transferred prescription.
5.9.7.4.2 Provide all information
required to be on the prescription drug order pursuant to
State and Federal laws and regulations.
5.9.7.5 To maintain the confidentiality of
patient's prescriptions (drug orders) or other pertinent
records, there must exist adequate safeguards of security.
This shall also pertain to prevent non-user access.
5.10 Electronic Transmission Of Prescriptions
5.10.1 All Prescription Drug Orders
communicated by way of Electronic Transmission shall:
5.10.1.1 be transmitted directly to a
Pharmacist in a licensed Pharmacy of the patient’s choice
with no intervening Person having access to the Prescription
Drug Order;
5.10.1.2 identify the transmitter’s phone
number for verbal confirmation, the time and date of
transmission, and the identity of the Pharmacy intended to
receive the transmission, as well as any other information
required by Federal or State law;
5.10.1.3 be transmitted by an authorized
Practitioner or his designated agent; and
5.10.1.4 be deemed the original
Prescription Drug Order provided it meets the requirements
of this subsection.
5.10.2 The prescribing Practitioner may authorize
his agent to communicate a Prescription Drug Order orally
or by way of Electronic Transmission to a Pharmacist in a
licensed Pharmacy, provided that the identity of the
transmitting agent is included in the order.
5.10.3 The Pharmacist shall exercise professional
judgment regarding the accuracy, validity, and authenticity
of the Prescription Drug Order communicated by way of
Electronic Transmission consistent with existing Federal or
State laws and rules.
5.10.4 All electronic equipment for receipt of
Prescription Drug Orders communicated by way of
Electronic Transmission shall be maintained so as to ensure
against unauthorized access.
5.10.5 Persons other than those bound by a
confidentiality agreement pursuant to Section 2.A. (2)(k)
shall not have access to Pharmacy records containing
Confidential Information or personally identifiable
information concerning the Pharmacy’s patients.
5.10.6 Controlled substance prescriptions may
only be electronically transmitted via a facsimile.
5.10.7 Facsimile prescriptions must meet the
following requirements in addition to the above listed
electronic Transmission requirements.
5.10.7.1 The prescription order shall
include the fax number of the transmitter, the number of
transmitted pages, the name, phone number, and electronic
number of the pharmacy intended to receive the
transmission, and a confidentiality statement in bold type
stating the electronic transmission should not be seen by
unauthorized persons.
5.10.7.2 Unless the prescription is written
for a schedule II controlled substance, the prescriber should
not issue the written prescription to the patient.
5.10.7.3 A facsimile transmitted
prescription order must be reduced to writing, unless
received as a non-fading document, with a notation that the
order was received by facsimile.
5.10.7.4 The receiving facsimile machine
must be in the prescription department to protect patientpharmacist-
authorized prescriber confidentiality and
security.
5.10.7.5 Both non-controlled and
controlled substance prescriptions may be transmitted via
facsimile following state and federal requirements. All
prescription orders for controlled substances shall be handsigned
by the practitioner.
5.11 Return of Medications and Supply
5.11.1 Prescriptions and items of personal
hygiene shall not be accepted for return or exchange by any
pharmacist or pharmacy after such prescription or items of
personal hygiene have been taken from the premises where
sold, distributed or dispensed.
5.11.2 Products under the direct control of a
health care professional which are packaged in manufacturer
unit dose or tamper-proof unopened bulk containers, tamper
proof seal in tact, including unused multi-dose punch cards,
may be redispensed in accordance with expiration dating in
customized patient medication package. Partially used
products may not be redispensed. Nothing in this regulation
precludes the Federal laws and regulations.
[5.12 Centralized Prescription Processing
5.12.1 A Pharmacy may perform or outsource
centralized prescription processing, services provided
the parties:
5.12.1.2 have the same owner; or
5.12.1.3 have a written contract
outlining the services to be provided and the
responsibilities and accountabilities of each party in
fulfilling the terms of said contract in compliance with
federal and state laws and regulations; and
5.12.1.4 share a common electronic file
or have appropriate technology to allow access to
sufficient information necessary or required to fill or
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 499
refill a prescription drug order.
5.12.2 The parties performing or
contracting for centralized prescription processing
services shall maintain a policy and procedures manual
and documentation that implementation is occurring in a
manner that shall be made available to the Board for
review upon request and that includes, but is not limited
to, the following:
5.12.2.1 A description of how the
parties will comply with federal and state laws and
regulations;
5.12.2.2 The maintenance of
appropriate records to identify the responsible
pharmacist(s) in the dispensing and counseling
processes;
5.12.2.3 The maintenance of a
mechanism for tracking the prescription drug order
during each step in the dispensing process;
5.12.2.4 The maintenance of a
mechanism to identify on the prescription label all
pharmacies involved in dispensing the prescription drug,
order;
5.12.2.5 The provision of adequate
security to protect the confidentiality and integrity of
patient information;
5.12.2.6 The maintenance of a quality
assurance program for pharmacy services designed to
objectively and systematically monitor and evaluate the
quality and appropriateness of patient care, pursue
opportunities to improve patient care, and resolve
identified problems.
5.12.3 In addition to the requirements of
24 Del. C. §2536, all drugs dispensed to a patient that
have been filled via a centralized prescription processing
system shall bear a label containing an identifiable code
that provides a complete audit trail of the dispensing of
the drug and pharmaceutical care activities.]
See 4 DE Reg. 163 (7/1/00)
See 4 DE Reg. 682 (10/1/00)
Effective Date: October 11, 1996
Effective Date: April 14, 1997 Section 5.4 revised
Effective Date: June 11, 1998
Amended Effective September 11, 1999
6.0 Pure Drug Regulations
6.1 Definition
"Central Nervous System" - Central nervous
system stimulants are drugs which increase the activity of
some portion of the brain or spinal cord. Drugs which act
upon the cerebral cortex and subcortical structures including
the thalamus (e.g. methylphenidate, etc.) increase motor
activity and enhance mental alertness; those which act upon
the sensory areas in the brain (e.g. caffeine and its various
combinations) increase alertness, brighten spirits and combat
mental fatigue; those which act directly or reflexly on the
medulla (e.g. nikethamide, pentylenetetrazol and picrotoxin)
stimulate the respiratory center; those which act on the spinal
cord (e.g. nux vomica and strychnine) facilitate and
exaggerate spinal reflexes.
6.2 The Delaware State Board of Pharmacy hereby
adopts the rules and regulations officially prescribed for the
enforcement of the Federal Food, Drug and Cosmetic Act
and Acts amendatory thereof, as far as applicable. This
regulation is promulgated to comply with directive in Title
16 Del.C. §3315 paragraph b.
6.3 Anyone who repacks and labels drugs in convenient
quantities for their own subsequent use must maintain a log
on the premises showing the date prepacked, the quantity
prepacked, the control number, expiration date and name and
strength of the drug. Prepacking must be done under the
supervision of a registered pharmacist or any other person
authorized to dispense under 24 Del.C. §2513. Each
container must have a label containing the name of the drug,
its strength, the manufacturer's control number, the
expiration date if applicable, the name of the manufacturer,
or the name and strength of the drug and a conference code
number which would enable the control number,
manufacturer and expiration date to be retrieved from the
log. Nothing in this regulation precludes the Federal laws
and regulations.
6.3.1 Beyond use date for single unit and unit
dose containers. The beyond use date for these products
shall be one year or less, unless the stability data or the
manufacturer's labeling indicates otherwise. To use this
date, the dispenser repacking the product must maintain the
facility and packaging at controlled room temperature not to
exceed 25°C. The plastic material used for repacking must
provide better protection against moisture permeation than
polyvinyl chloride.
See 4 DE Reg. 1502 (3/1/01)
6.4 All biologicals, vaccines, drugs, chemicals,
preparations and compounds must be packaged, labeled,
stored and preserved in compliance with USP/NF and all
other State and Federal standards. A pharmacist may, with
the permission of the patient or the patient's agent, provide a
"Customized Patient Medication Package" only to patients
that are self-medicating. The containers shall meet all of the
requirements of the USP/NF standard entitled, "Customized
Patient Medication Package."
6.5 Labeling of Over-the-Counter Central Nervous
System Stimulants. Over-the-counter central nervous
system stimulants must be labeled and packaged in
compliance with state and federal requirements.
6.6 Over-the-Counter Medication - Over-the-counter
drug is one that can be legally sold without a prescription.
NOTE: The only over-the-counter products which
currently can be labeled, advertised promoted, marketed or
sold as a stimulant are those that do not contain any active
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
500 FINAL REGULATIONS
ingredient but caffeine.
7.0 Non-pharmacy Outlets Handling Legend Veterinary
Drugs
7.1 Persons who dispense must be adults (21 years of
age).
7.2 The registrant must provide the Board with a list of
persons who will dispense.
7.3 The Board must be notified in writing of any
changes concerning those persons within 10 days of the
change.
7.4 Storage - All medications must be stored in
compliance with USP/NF standards. Example: 36 to 46
degrees Fahrenheit for drugs requiring refrigeration. 59 to
86 degrees Fahrenheit for drugs requiring storage at room
temperature. All medications must be stored at the
registered premise.
7.5 Security - Drugs requiring a prescription must be
secured in a manner to prohibit access by unauthorized
person. Self-service display of veterinary drugs which
require a prescription is prohibited.
7.6 Labeling - A medication dispensed must be labeled
in compliance with 24 Del.C. §2536 and other applicable
State and Federal Statutes and Regulations.
7.7 Packaging - Medications must be dispensed in
containers which comply with USP/NF and Poison
Prevention Packaging Act requirements.
7.8 Records:
7.8.1 Invoices for the purchase of veterinary
drugs requiring a prescription must be maintained at the
registered premise for at least two years after the original
date of the invoice.
7.8.2 The written order of confirmation of an
oral order must be maintained in a separate file at the
registered premise. These documents shall be consecutively
numbered. If a written order is not received within 72 hours,
the seller must notify the Board of Pharmacy.
7.8.3 When a seller documents that a
veterinarian is properly licensed in another state, the
following information must be recorded on the back of the
order:
7.8.3.1 The name, address and license
number of the prescriber.
7.8.3.2 The name, address and phone number
of the information source.
7.9 All required records shall at all times be opened to
inspection by duly authorized persons. Inspections by duly
authorized personnel will be conducted during normal
business hours per the authority granted in 24 Del.C. §2535.
8.0 Requirements for Obtaining a Permit to Distribute
Drugs on a Wholesale Basis
8.1 Purpose. The purpose of this regulation is to
implement the provisions of the prescription Drug Marketing
Act of 1987 by defining the minimum standards, terms, and
conditions for which a permit may be issued to persons who
engage in wholesale distribution of (prescription) drugs
within the State of Delaware.
8.2 Definitions
"Blood" means whole blood collected from a
single donor and processed either for transfusion or further
manufacturing.
"Blood component" means that part of blood
separated by physical or mechanical means.
"Drug sample" means a unit of a prescription drug
that is not intended to be sold and is intended to promote the
sale of the drug.
"Manufacturer" means anyone who is engaged in
manufacturing, preparing, propagating, compounding,
processing, packaging, repackaging, or labeling of a
prescription drug.
"Person" means an individual, partnership,
corporation, business firm, or a sole proprietorship.
"Prescription drug" means any drug required by
Federal law or regulation to be dispensed only by a
prescription, including finished dosage forms and active
ingredients subject to section 503(b) of the Federal Food,
Drug, and Cosmetic Act.
"Wholesale distribution" means distribution of
prescription drugs to persons other than a consumer or
patient, but does not include:
"Intracompany sales", being defined as any
transaction or transfer between any division, subsidiary,
parent and/or affiliated or related company under the
common ownership and control of a corporate entity:
The purchase or other acquisition by a hospital
or other health care entity that is a member of a group
purchasing organization of a drug for its own use from the
group purchasing organization or from other hospitals or
health care entities that are members of such organizations;
The sale, purchase, or trade of a drug or an
offer to sell, purchase, or trade a drug by a charitable
organization described in section 501(c)(3) of the Internal
Revenue Code of 1954 to a nonprofit affiliate of the
organization to the extent otherwise permitted by law;
The sale, purchase, or trade of a drug or an
offer to sell, purchase, or trade a drug among hospitals or
other health care entities that are under common control, for
purposes of this section, "common control" means the power
to direct or cause the direction of the management and
policies of a person or an organization, whether by
ownership of stock, voting rights, by contract, or otherwise;
The sale, purchase, or trade of a drug or an
offer to sell, purchase, or trade a drug for emergency medical
reasons; for purposes of this section, "emergency medical
reasons" includes transfers of prescription drugs by a retail
pharmacy to another retail pharmacy to alleviate a temporary
shortage, except that the gross dollar value of such transfers
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 501
shall not exceed five (5) percent of the total prescription drug
sales revenue of either the transferrer or transferee pharmacy
during any 12 consecutive month period;
The sale, purchase, or trade of a drug, an offer
to sell, purchase, or trade a drug, or the dispensing of a drug
pursuant to a prescription;
The distribution of drug samples by
manufacturers' representatives or distributors'
representatives; or
The sale, purchase, or trade of blood and blood
components intended for transfusion.
"Wholesale distributor" means anyone engaged
in wholesale distribution of prescription drugs, including but
not limited to, manufacturers, repackers; own-label
distributors; private-label distributors; jobbers; brokers;
warehouses, including manufacturers' and distributors'
warehouses, chain drug warehouses, and wholesale drug
warehouses; independent wholesale drug traders; and retail
pharmacies that conduct wholesale distributions.
8.3 Permit Requirements. Every wholesale distributor
located in the State of Delaware who engages in wholesale
distribution out of or within this State will be issued a permit
by the Delaware Board of Pharmacy in accordance with the
laws and regulations of this State before engaging in
wholesale distribution of prescription drugs.
8.4 Wholesale Distributor Permit Requirement
8.4.1 The Delaware Board of Pharmacy requires
the following from each wholesale drug distributor as part of
the initial permit procedure and as part of any renewal of
such permit:
8.4.1.1 The name, full business address, and
telephone number of the permittee;
8.4.1.2 All trade or business names used by
the permittee;
8.4.1.3 Addresses, telephone numbers, and
the names of contact persons for the facility used by the
permittee for the storage, handling, and distribution of
prescription drugs;
8.4.1.4 The type of ownership or operation
(i.e. partnership, corporation, or sole proprietorship); and
8.4.1.5 The name(s) of the owner and/or
operator of the permittee, including:
8.4.1.5.1 If a person, the name of the
person;
8.4.1.5.2 If a partnership, the name of
each partner, and the name of the partnership;
8.4.1.5.3 If a corporation, the name
and title of each corporate officer and director, the corporate
names, and the name of the State of incorporation, and the
name of the parent company, if any;
8.4.1.5.4 If a sole proprietorship, the
full name of the sole proprietor and the name of the business
entity.
8.4.1.6 Submission of a policy and
procedures manual pertinent to employee qualifications and
training.
8.4.2 Changes in any information in this section
shall be submitted to the Board of Pharmacy within 30 days
after such change.
8.5 Minimum Qualifications. The Delaware Board of
Pharmacy will consider the following factors in determining
eligibility for granting a permit to persons who engage in the
wholesale distribution of prescription drugs:
8.5.1 Any convictions of the applicant under
any Federal, State, or local laws relating to drug samples,
wholesale or retail drug distribution, or distribution of
controlled substances;
8.5.2 Any felony convictions of the applicant
under Federal, State, or local laws;
8.5.3 The applicant's past experience in the
manufacture or distribution of prescription drugs, including
controlled substances;
8.5.4 The furnishing by the applicant of false or
fraudulent material in any application made in connection
with drug manufacturing or distribution;
8.5.5 Suspension or revocation by Federal,
State, or local government of any license currently or
previously held by the applicant for the manufacture or
distribution of any drugs, including controlled substances;
8.5.6 Compliance with the requirements of this
regulation under previously granted permits if any;
8.5.7 Compliance with the requirements to
maintain and/or make available to the State Board authority
or to Federal, State, or local law enforcement officials those
records required to be maintained by wholesale drug
distributors.
8.6. Personnel. As a condition for receiving and
retaining a wholesale drug distributor permit, the permittee
shall require each person employed in any prescription drug
wholesale distribution activity to have education, training,
and experience, or any combination thereof, sufficient for
that person to perform the assigned functions in such a
manner as to provide assurance that the drug product quality,
safety and security will at all times be maintained as required
by law. The permittee must maintain records evidencing that
each employee has been trained in accordance with the
policy and procedure manual approved at the time of the
issuance of the permit. These records shall be kept two years
from the date of separation of the employee from the
company. Records on all current employees shall be
available at any time for inspection.
8.7 Facilities. All facilities at which drugs are
stored, warehoused, handled, held, offered, marketed, or
displayed shall:
8.7.1 Be of suitable size and construction to
facilitate cleaning, maintenance and proper operations.
8.7.2 Have storage areas designed to provide
adequate lighting, ventilation, temperature, sanitation,
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
502 FINAL REGULATIONS
humidity, space, equipment, and security conditions.
8.7.3 Have a quarantined area for storage of
drugs that are outdated, damaged, deteriorated, misbranded,
or adulterated.
8.7.4 Be maintained in a cleaned and orderly
condition; and be free from infestation of insects, rodents,
birds, or vermin of any kind.
8.8 Storage. All prescription drugs shall be stored at
appropriate temperatures and under appropriate conditions in
accordance with requirements, if any, in the labeling of such
drugs, or with requirements in the current edition of an
official compendium, such as the United States
Pharmacopeia/National Formulary (USP/NF).
8.8.1 If no storage requirements are established
for a prescription drug, the drug may be held at "controlled"
room temperature, as defined in an official compendium, to
help ensure that its identity, strength, quality, and purity are
not adversely affected.
8.8.2 Appropriate manual, electromechanical, or
electronic temperature and humidity recording equipment,
devices, and/or logs shall be utilized to document proper
storage of prescription drugs.
8.9 Record Keeping Requirements. Wholesale drug
distributors shall establish and maintain inventory and
records. Records shall include the following information:
8.9.1 Sources of the drugs, the identity and
quantity of the drugs received and distributed or disposed of,
and the date of receipt and distribution or other disposition of
the drugs.
8.9.2 Records for all personnel and training.
8.9.3 All inventories and records shall be made
available for inspection and photocopying by authorized
Federal, State, or Local law enforcement agency officials for
a period of two years following the disposition of the drugs.
8.9.4 Records described in this section that are
kept at the inspection site or that can be immediately
retrieved by computer or other electronic means shall be
readily available for authorized inspection during the
retention period. Records kept at a central location apart
from the inspection site and not electronically retrievable
shall be made available for inspection within 2 working days
of a request by an authorized official of a Federal, State, or
local law enforcement agency.
8.10 Written Policies and Procedures
8.10.1 There shall be written policies and
procedures which shall be followed for the receipt, security,
storage, inventory, and distribution of drugs including
policies for identifying, recording, and reporting losses or
thefts, and for correcting all errors, inaccuracies, and
inventories. There shall be:
8.10.1.1 A procedure whereby the oldest
approved stock of a drug product is distributed first.
Deviation from this requirement is permitted if such
deviation is temporary and appropriate.
8.10.1.2 A procedure must be established
for the handling of recalls and withdrawals of manufacturer/
distributor drugs due to any action initiated at the request of
the manufacturer, the FDA or other Federal, State, or local
enforcement or government agencies.
8.10.1.3 A procedure whereby drugs that
are outdated, damaged, deteriorated, misbranded or
adulterated are physically separated until they are destroyed
or returned to their supplier.
8.11 Salvaging and Reprocessing. Compliance with
applicable Federal, State, or local law or regulations relating
to drug product salvaging is required.
8.12 Security
8.12.1 All facilities shall be secured from
unauthorized entry.
8.12.2 The outside of the premises shall be well
lighted.
8.12.3 Entry into areas where drugs are held shall
be limited to authorized personnel.
8.12.4 All facilities shall be equipped with an
alarm system to detect entry after hours subject to approval
by the Secretary of the Board.
8.12.5 There must be a security system that will
provide suitable protection against theft and diversions.
When appropriate, the system shall provide protection
against theft or diversion that is facilitated or hidden by
tampering with computers or electronic records.
9.0 Hospital Pharmacy
9.1 Definition:
A hospital pharmacy is defined as a pharmacy
registered with the Board located in a hospital facility.
"Hospital pharmacy" shall not include a pharmacy operated
by a hospital facility at a location other than the site of a
permanent facility at which in-patient care and medical
services are rendered.
9.2 Personnel
9.2.1 Director of Pharmacy. The storage,
compounding, repackaging, dispensing and distribution of
drugs by a hospital pharmacy shall be under the direction,
supervision and responsibility of the pharmacist-in-charge,
hereinafter referred to as the Director of Pharmacy, who
shall be responsible for operating the pharmacy in
compliance with appropriate State and Federal Statutes and
Regulations. Written policies and procedures will be
established defining the operation and scope of services
provided by the hospital pharmacy. The Manual shall
include policy and procedures concerning:
9.2.1.1 Preparation and sterilization of
parenteral medications if done within the hospital pharmacy.
9.2.1.2 Establishment of specifications for
procurement of drugs, chemicals and biologicals. The
procedures are subject to the approval of the appropriate
committee of the hospital.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 503
9.2.1.3 Maintaining readily available
inventory of emergency drugs both in the pharmacy and
patient care areas. Current antidote information and
telephone numbers of regional poison control centers must
also be available.
9.2.1.4 Participation in the development of a
Formulary or drug list for the hospital.
9.2.1.5 The filling and labeling of all
containers from which drugs are to be administered in
compliance with applicable Statutes and Regulations.
9.2.1.6 The records of the transactions of the
pharmacy that are required by applicable law and that are
necessary for accurate control and accountability. This
should include procedures for wastage of controlled
substances in all areas of the hospital.
9.2.1.7 Polices and procedures shall specify
the duties to be performed by pharmacy personnel.
9.2.1.8 Discontinued drug procedures to
insure that discontinued drugs and containers with worn,
illegible or missing labels are returned to the pharmacy for
proper disposition or disposal. All outdated products should
be removed from all areas and stored in a separate section in
the pharmacy for proper disposition or disposal.
9.2.1.9 A recall procedure that can be
implemented to insure proper disposition of the recalled
materials.
9.2.1.10 A policy for drugs brought in by
patients.
9.2.1.11 A policy for the proper handling
of investigational drugs must be in compliance with FDA
and State requirements.
9.2.1.12 The pharmacist shall be involved
with the utilization review process as it pertains to drug
therapy.
9.2.2 Registered Pharmacists. The Director of
Pharmacy may be assisted by additional registered
pharmacists who are also responsible for compliance with
the applicable laws.
9.2.3 Supportive Personnel. Supportive
personnel [Pharmacy Technician. Pharmacy technicians]
may be utilized in assisting the pharmacist. These persons
must be supervised by a registered pharmacist who is present
within the hospital and is responsible for the activities of
those persons.
9.3 Absence of Pharmacist. When a pharmacist is not
on duty, drugs may be provided for use by physicians and
other authorized staff via night cabinets or other areas
designated by the hospital, and in emergency circumstances
by access to the pharmacy. A pharmacist shall be available
to provide professional services.
9.4 Night Cabinets or Other Designated Areas
9.4.1 These drug storage areas must be securely
locked and substantially constructed in a manner which
prevents easy entry.
9.4.2 Access must be limited to authorized
personnel.
9.4.3 Contents and use procedures should be
determined by the pharmacy and those departments with
access to the night cabinet or other designated areas in
accordance with the hospital's policies and procedures.
9.4.4 Drugs must be properly labeled and
prepackaged in sufficient quantities as defined by the
hospital.
9.4.5 Accountability records documenting
withdrawal and replacement of controlled drugs must be
readily available.
9.4.6 The transaction shall be reviewed by the
pharmacy when it reopens and incorporated into the hospital
pharmacy's medication record keeping system.
9.5 Access to Pharmacy. When a pharmacist is not
available and medications cannot be obtained immediately
from any other source, authorized persons may enter the
pharmacy and obtain drugs per procedures established by the
hospital. The procedures must include the following
stipulations:
9.5.1 Entry shall be by two persons; registered
nurse or physician with another nurse, physician, or security
person present approved by the hospital.
9.5.2 Persons authorized to enter the pharmacy
shall indicate the name and strength and amount of drug
removed, the date, time and their signature, and the name
and location of the patient. The transaction shall be
reviewed by the pharmacy when it reopens and incorporated
into the hospital pharmacy's medication record keeping
system.
9.6 Emergency Drugs. Emergency drugs must be
available for use by authorized personnel at strategic
locations throughout the hospital. The drugs must be
available to authorized personnel and must be stored in a
manner to preserve the integrity of the contents.
9.6.1 Emergency Drugs Defined - Emergency
drugs are those drugs which may be required to meet the
immediate therapeutic needs of patients and which are not
available from any other authorized source in sufficient time
to prevent risk or harm to patients.
9.6.2 Emergency drug supplies shall be clearly
identified for emergencies. A list showing the contents and
the strength and quantity of each item shall be attached to the
exterior.
9.6.3 Removal of Drugs- Drugs shall be
removed from an emergency drug supply only pursuant to a
valid physician's order or by authorized personnel.
9.6.4 Notification - Whenever an emergency
drug supply is accessed, the pharmacy or its designee shall
be notified within 24 hours, and the pharmacy or its designee
shall restock and reseal or replace the kit or cart within fortyeight
hours.
9.7 Equipment and Texts. Each hospital pharmacy
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
504 FINAL REGULATIONS
shall have the equipment and texts required by Board
Regulation 3.0 and Regulation 10.0.
9.8 Drug Storage. Drugs must be stored in compliance
with State and Federal Statutes and Regulations and
according to USP/NF requirements.
9.9 Labeling
9.9.1 The drug dispensed for inpatient use shall
contain a label, shall show the brand or established name and
the strength of the medication. If the medication is
prepacked, it must also show the source, lot number and
expiration date, in compliance with the Board's prepacking
regulation.
9.9.2 All drugs dispensed for outpatients must
be labeled in compliance with the Pharmacy Statutes.
9.9.3 Admixtures in parenteral bags and bottles
shall be labeled in accordance with Regulation 10.0.
9.10 Abbreviations. The hospital should establish a
standard list of abbreviations to be used whenever
medications are prescribed.
9.11 Outpatient Orders. Medication dispensed for
outpatients via prescriptions are governed by applicable
State and Federal Statutes Regulations. A patient profile
must be maintained and counseling must be provided for
each person according to Regulation 5.0.
9.12 Suspected Adverse Drug Reaction. When an
adverse reaction is documented, the pharmacy department
shall receive a copy.
9.13 Maintenance of Medication Orders. Patient
Profile - A patient medication profile must be maintained for
each inpatient whose medication is directly dispensed from
the pharmacy. It must show the patient's name, location,
age, allergies and diagnosis(es) as available. The profile
must show the name, strength and quantity of the drug
dispensed and appropriate directions and the initials of the
dispenser. Prior to administration of the first dose, the
pharmacist must examine the profile to determine the
possibility of a harmful drug interaction or reaction. Upon
recognizing a significant potential for harm, the pharmacist
should notify the prescriber and other appropriate persons.
The profile must be retained and readily retrievable for 30
days after discharge.
9.14 Medication Error. Medication error as defined
by the hospital shall be documented and reported
immediately to the pharmacy. It should also be reported to
the attending physician.
9.15 Monthly Inspections. A member of the
pharmacy staff shall conduct monthly inspections of each
nursing station and patient care areas where medications are
dispensed, administered or stored. Such documented
inspections shall verify that:
9.15.1 Disinfectants and drugs for external use
are stored separately.
9.15.2 Drugs are stored under proper conditions.
9.15.3 No outdated drugs are present.
9.15.4 Distribution, administration, and
disposition of controlled substances audits indicates proper
record keeping and administration.
9.15.5 Emergency drug supplies and floor stock
drug levels are properly maintained.
9.15.6 Drugs are properly secured.
9.16 Hospital Operating with an Off-site Pharmacy
Provider.
9.16.1 Definition. A hospital operating with an
off-site pharmacy is one that obtains pharmacy services from
another hospital, community pharmacy, or infusion
pharmacy that can provide services as necessary for
operation.
9.16.2 Personnel.
9.16.2.1 There must be a Director of
Pharmacy or Consultant Pharmacist available on an on-call
procedure 24 hours per day. The storage, compounding,
repackaging, dispensing and distribution of drugs by an offsite
Provider Pharmacy shall be under the direction,
supervision and responsibility of a Pharmacist-in-Charge or
Director of Pharmacy. This person shall be responsible for
operating the pharmacy in compliance with appropriate State
and Federal Statutes and Regulations.
9.16.2.2 The Director of Pharmacy or
Pharmacist-in-Charge may be assisted by additional
registered pharmacists who are also responsible for
compliance with the applicable laws. Any of these
registered pharmacists may act as the Consultant Pharmacist
for the institution if he/she is licensed to practice pharmacy
in the State of Delaware. Additional supportive personnel
[pharmacy Technician] may be utilized as required.
9.16.2.3 The Director of Pharmacy or
Pharmacist-in-Charge must provide written policies and
procedures establishing the operation and scope of services
provided by the off-site Pharmacy Provider. The Policy and
Procedure Manual shall include all items as outlined in "B."
of this section. In addition, the manual shall include a
written statement of pharmaceutical services provided and
the responsibilities of the off-site Provider Pharmacy.
9.16.3 Monthly Inspections. The Director of
Pharmacy or Consultant Pharmacist must perform monthly
medication area inspections as outlined in "O" of this
section.
9.16.4 Storage
9.16.4.1 Drugs must be stored at the offsite
Pharmacy Provider in compliance with State and Federal
Statutes and Regulations and according to USP/NF
requirements.
9.16.4.2 The Pharmacy Provider must also
provide any special handling and/or packaging and/or
storage conditions for compounded sterile preparations when
delivering from the pharmacy to the institution as necessary
to maintain the sterility and stability of the preparation. This
includes any product that is frozen or that requires
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 505
refrigeration.
9.16.5 Patient Profiles. The off-site Pharmacy
Provider must maintain complete patient profiles as outlined
in Regulation 5.0.
9.16.6 Medication Errors or Adverse Reactions
9.16.6.1 Any medication errors or adverse
drug reactions, as defined by the hospital, shall be
documented and reported to the off-site Pharmacy Provider.
9.16.6.2 This information shall also be
reported to the Director of Pharmacy, Pharmacist-in-Charge,
or Consultant Pharmacist for their review and documentation
for the patient profile.
9.16.7 Emergency Medications
9.16.7.1 All legend drugs not dispensed in
patient name shall be approved by the Board of Pharmacy in
order for those emergency medications to be kept as "stock"
at the institution.
9.16.7.2 The procedure for approval of
emergency medications must be followed as outlined in
Regulation 11.3.
10.0 Sterile Pharmaceuticals and Antineoplastic
Agents
This regulation contains minimum pharmacy practices
for the preparation, compounding and dispensing of sterile
preparations and antineoplastic agents by licensed
pharmacies.
10.1 Definitions. As used in this part, the following
terms shall have the meanings specified:
"Admixture" - A solution for parenteral
administration to which one or more additional drugs have
been added.
"Antineoplastic Agent" - A drug used to treat
various forms of cancer.
"Aseptic Technique" - A procedure for
compounding sterile preparations designed to minimize/
prevent contamination during the compounding procedure.
"Class 100" - A classification of an airflow unit
capable of producing an environment containing no more
than 100 airborne particles of a size 0.5 micron and larger
per cubic foot (3.5 particles/liter) of air.
"Enteral Nutrition" - The administration into the
gastro-intestinal tract of calories, nitrogen, and/or other
nutrients to achieve tissue synthesis and anabolism for
patients requiring medically prescribed, defined formula,
liquid diets.
"HEPA" - (High-efficiency particulate air) Filter -
A filter that provides a minimum-efficiency of 99.97% in
removal of particles 0.3 micron or larger from the effluent
air.
"Laminar Airflow" - An entire body of air moving
with uniform velocity along parallel flow lines.
"Parenteral" - A sterile preparation intended for
injection and used in the diagnosis, cure, mitigation, or
treatment of disease or modification of physiological
functions in human beings, but not including blood or blood
products or as otherwise defined in the current United States
Pharmacopeia.
"Sterile Pharmaceutical" - A dosage form free
from living microorganisms.
"Total Parenteral Nutrition" - The intravenous
administration of calories, nitrogen, and other to achieve
tissue synthesis and anabolism.
10.2 General Requirements. A licensed pharmacy
in the State of Delaware desiring to compound and dispense
prescriptions or physician's orders for sterile
pharmaceuticals and antineoplastic agents shall meet the
following requirements:
10.2.1 Facilities and Equipment
10.2.1.1 The environment for the
preparation of such prescriptions shall be set in a low traffic
area, clean and free of contaminants and dust, and equipped
to permit controlled aseptic/antineoplastic compounding.
10.2.1.2 The area for preparing sterile/
antineoplastic prescriptions shall be segregated from general
non-aseptic work and storage areas and shall be used solely
for sterile pharmaceutical/anti-neoplastic compounding.
The area shall be maintained at controlled room
temperatures as defined by the United States Pharmacopeia.
10.2.1.3 The area(s) shall provide space
for a minimum of one class 100 environment. Additionally,
the space shall be of a size to accommodate equipment as
required herein and sufficient space to allow personnel
working therein to safely and accurately fulfill their duties.
10.2.1.4 Minimum requirements for
equipment, supplies and publications are as follows:
10.2.1.4.1 Minimally, a class 100 air
flow unit
10.2.1.4.1.1 The air flow unit must
be in compliance with recommendations from OSHA
guidelines.
10.2.1.4.2 Refrigerator
10.2.1.4.3 Sink and wash area easily
accessible to the sterile preparation/antineoplastic
compounding area(s)
10.2.1.4.4 Appropriate waste containers
for:
10.2.1.4.4.1 Used needles and
syringes
10.2.1.4.4.2 All antineoplastic
wastes including apparel used in their preparation
10.2.1.4.5 Supplies:
10.2.1.4.5.1 Disposable needles and
syringes and other supplies needed for sterile
pharmaceutical/antineoplastic compounding
10.2.1.4.5.2 Disinfectant cleaning
agents
10.2.1.4.5.3 Single-use lint free
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
506 FINAL REGULATIONS
towels or air-driers
10.2.1.4.5.4 Hand washing materials
with bactericidal action
10.2.1.4.5.5 Equipment and
materials for cleaning antineoplastic agent spills
10.2.1.4.6 References: In addition to
compliance with the reference requirements as set forth in
Delaware Board Regulation 3.0, the pharmacy must have the
following texts (items b and c required if chemotherapy
agents are prepared):
10.2.1.4.6.1 Handbook of Injectable
Drugs by the American Society of Hospital Pharmacists.
10.2.1.4.6.2 Procedures for handling
Antineoplastic Drugs Technical Bulletin - most current
edition published by the American Society of Hospital
Pharmacists.
10.2.1.4.6.3 Most current edition of
OSHA Guidelines for the handling of antineoplastic agents.
10.2.1.4.6.4 The Policy and
Procedures Manual prepared under Section F of this
Regulation.
10.2.1.4.7 Drug Components: All drug
components that are received, stored, or used in
compounding prescriptions shall meet official compendial
requirements. If this cannot be met, pharmacists shall use
their professional judgment to procure alternatives.
10.3 Personnel
10.3.1 The compounding of sterile
pharmaceuticals/anti-neoplastic agents shall be under the
control and supervision of a licensed pharmacist. The
licensed pharmacist-in-charge or licensed pharmacist
designee shall be on duty and on premises during all hours of
operation of said pharmacy.
10.3.2 A pharmacist shall be accessible by
telephone 24 hours a day to answer questions and to provide
consultation regarding the dispensed preparation.
10.3.3 supportive personnel [pharmacy
Technician]: The pharmacist managing the section of the
pharmacy providing sterile/anti-neoplastic product
pharmacy services may be assisted by supportive personnel
[pharmacy Technician]. These personnel [persons] must
have specialized training in this field, and shall work under
the supervision of a licensed pharmacist. The training
provided to these personnel [persons] must be described in
writing in a training manual. The duties and responsibilities
of these personnel [persons] must be consistent with their
training and experience.
10.4 Storage, Preparation, Dispensing, and
Handling
10.4.1 A pharmacy shall provide any special
handling and/or packaging and/or storage conditions for
compounded sterile/antineoplastic preparations when
delivering from the pharmacy to the patient or institution as
necessary to maintain sterility and stability of the
preparation.
10.4.2 Each pharmacy shall develop product
sampling plans and shall have the ability to determine or
know where to readily procure services to assure the quality
of the products compounded or prepared.
10.4.3 Delivery service. The pharmacist
managing the section of the pharmacy providing sterile/
antineoplastic product pharmacy services is responsible for
the environmental control of all products shipped.
Therefore, any compounded, sterile parenteral product or
antineoplastic agent that is frozen, or that requires
refrigeration, must be shipped or delivered to a patient in
appropriate coolers and stored appropriately in the patient's
home.
10.5 Labeling
10.5.1 Each compounded preparation shall bear a
label indicating the date beyond which it should no longer be
administered and the temperature or conditions under which
it should be stored.
10.5.2 If the preparation is an antineoplastic
product, it must be labeled with a warning label clearly
identifying the product as such.
10.5.3 The following "beyond use" dates shall be
used: Admixtures in parenteral bags and bottles shall be
labeled with a distinctive supplementary label, indicating the
name and amount of the drug added, date, expiration date of
the container and name or initials of the person preparing the
solution.
10.5.3.1 Admixtures: Maximum of
seventy-two hours when stored under refrigerated conditions
from the time of compounding unless the manufacturer's
recommendation is to store at room temperature and/or
longer storage times can be substantiated with
documentation.
10.5.3.2 If medications with expiration
periods of less than forty-eight hours are added to a
parenteral solution, or if the manufacturer indicates an
expiration period of less than forty-eight hours, the "beyond
use" date of the solution shall be the shorter expiration
period and shall appear on the label.
10.6 Policy and Procedures Manual
10.6.1 A Policy and Procedures Manual shall be
prepared and be available at each pharmacy site where sterile
pharmaceuticals/antineoplastic agents are prepared for
inspection by authorized agents of the Board of Pharmacy.
The Policy and Procedures Manual shall contain the
objectives, operational guidelines and standard operating
procedures of the pharmacy pertaining to sterile products/
antineoplastic agents. A procedure shall be included that
addresses how a contaminated product is detected, recall
measures and follow up.
10.6.2 The manual shall include procedures to be
used by the pharmacy to prevent contamination of the
products during preparation, storage, and dispensing.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 507
10.6.3 The manual shall include written policies
and procedures for cleaning and maintenance of the sterile
pharmaceutical compounding/antineoplastic agent area(s)
with records kept in the pharmacy department for one year.
10.6.4 Documentation of the following shall be
included:
10.6.4.1 Replacement of filters and
prefilters.
10.6.4.2 Certification of clean air source
by an outside agency at least once a year.
10.6.4.3 Cleaning and maintenance of the
equipment.
10.6.5 If antineoplastic agents are compounded in
the pharmacy, protection shall be provided for its personnel
by utilizing the proper equipment and protective garb and
having a Policy and Procedures Manual for said
antineoplastic agents. The Manual shall include, among the
other requirements, the following special requirements
outlined in sections 10.2 - 10.5 the following special
requirements:
10.6.5.1 Procedures for disposal of all
unused drugs and materials used in the preparation of
antineoplastic agents in accordance with accepted
professional standards, such as the most current OSHA
Guidelines, regarding the handling of antineoplastic agents.
10.6.5.2 Safety standards which stress
proper technique in handling antineoplastic agents and
which include:
10.6.5.2.1 A certified vertical laminar
air flow hood.
10.6.5.2.2 Protective garb, i.e., gloves,
face and eye protection, and gowns.
10.6.5.3 In the event that antineoplastic
agents and other parenterals are prepared within the same air
flow unit, procedures shall be provided for a thorough scrub
down and air purge of at least twenty minutes after
compounding of the antineoplastic agent(s).
10.6.6 The Policy and Procedures Manual shall
be maintained on a current basis. It shall be reviewed at least
annually and changes shall show the effective date.
Revised Effective Date: April 14, 1997 (10.2 General
Requirements revised)
11.0 Pharmaceutical Services in Nursing Homes
11.1 Definition: A nursing home is an institution
licensed by the State Board of Health Division of Public
Health that provides permanent facilities that include inpatient
beds and medical services, including continuous
nursing services, to provide treatment for patients who do
not currently require continuous hospital services. Rest -
Residential [and Assisted Living] beds in licensed nursing
homes are exempt from this regulation. They are considered
under Health Care Facilities.
11.2 General Requirements
11.2.1 Each administrator [facility] shall provide
within the facility, a cabinet or medication carts for
individual prescriptions [patient medications]. These
storage units shall be of sufficient size and located where
easily accessible. They shall be locked when not in use and
the key [and/or code] for the lock of the storage unit shall
be carried by or be accessible only to registered nurses,
licensed practical nurses[, pharmacy technicians,] or
pharmacists. Controlled substances storage shall be in
compliance with State and Federal statutes and regulations.
11.2.2 All bleaches, detergents, disinfectants, and
external preparations so labeled shall be kept in a separate
locked cabinet, compartment, or room apart from medicines,
drugs or foods. [Internal medications must be stored
separately from external medications.]
11.2.3 Adequate refrigeration (36° to 46°
Fahrenheit) must be used to store medications requiring
refrigeration. [Medications requiring refrigeration must
be stored within the USP/NF refrigeration temperature
range of 36 to 46 degrees Fahrenheit.]
11.2.4 Medications which require room
temperature storage must be maintained at either USP/NF
ranges [of 59 to 86 degrees Fahrenheit] or the
manufacturer's labeled range.
11.2.5 No persons except properly authorized
licensed personnel shall handle or administer "caution
legend drugs Rx only drugs." from individual prescriptions.
11.2.6 Schedule II substances shall be secured
under two locks in securely, fixed boxes or drawers in the
medication storage area, medication cart, interim or and
emergency supplies. These are to be kept separate from noncontrolled
medications. There shall be accountability
procedures for all Schedule II substances present.
11.2.7 [There shall be accountability
procedures for all controlled substances present.] There
shall be readily retrievable records maintained [at the
provider pharmacy and the facility] showing the receipt
and disposition of all controlled substances. [These records
must be maintained for 2 years.]
11.3 Stock Medication
11.3.1 Non-legend medications:
11.3.1.1 A minimal amount of non-legend
drugs may be kept as stock supply.
11.3.1.2 If accountabilities for individual
patients are found to be inadequate upon inspection, then the
stock non-legend medications may be subject to limitations.
[11.3.1] 11.3.2 Legend Prescription]
medications - Emergency, IV, and Anaphylactic supplies
[11.3.1.1] 11.3.2.1 Certain legend
prescription] medications for emergency use may be
stocked by the nursing home subject to Board approval [by
the Executive Secretary of the Board].
[11.3.1.2] 11.3.2.2 Emergency use
medications are those which may be required to meet the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
508 FINAL REGULATIONS
immediate therapeutic needs of patients and which are not
available from any other authorized source in sufficient time
to prevent risk or harm to patients by delay resulting from
obtaining such drugs from other sources.
[11.3.1.3] 11.3.2.3 IV's and vaccines must
be submitted on an IV interim stock list [for approval by
the Executive Secretary of the Board.]
[11.3.1.4] 11.3.2.4 [IV medications must
be submitted on a stock list for approval by the Executive
Secretary of the Board.] Only one IV box may be
maintained at the facility, unless an exemption is granted by
the Board. The number of Anaphylaxis or Emergency boxes
must also be submitted for Board approval. [A request for
an additional box must be submitted to the Executive
Secretary of the Board.]
[11.3.1.5 The number and contents of
Anaphylaxis and Emergency boxes must be submitted
for approval to the Executive Secretary of the Board.]
[11.3.1.6] 11.3.2.5 If there is no specific
[There must be an] accountability procedure at the facility
for needles and syringes then these must be submitted on an
IV or emergency box list for approval. These are legend
items in the State of Delaware.
[11.3.2 11.3.3 Legend Prescription]
medications - Interim supply
The criteria for legend interim medications
requiring Board approval are as follows:
11.3.3.1 The interim supply may consist
of medications selected from the following categories:
11.3.3.1.1 antibiotics
11.3.3.1.2 pain medications
11.3.3.1.3 antidiarrheal
11.3.3.1.4 cold/cough/antihistamines
11.3.3.1.5 antiemetics
11.3.3.1.6 antihypertensive
11.3.3.1.7 anticonvulsants
11.3.3.1.8 antidiabetic agents
11.3.3.1.9 cardiovascular drugs
11.3.3.1.10 respiratory/bronchodilators
11.3.3.1.11 sedatives/hypnotics
11.3.3.1.12 anticoagulants
11.3.3.1.13 H2 antagonists
11.3.3.2 The pharmacy, medical, and
nursing staff committee may select a maximum quantity of 6
dosage units for items present in this supply.
[11.3.2.1] 11.3.3.3 There can be no more
than a total of 60 legend prescription] items present in this
interim supply [with a maximum quantity of 6 dosage
units per item.]
[11.3.2.2] 11.3.3.4 Only one interim box
may be maintained at the facility, unless an exemption is
granted by the Board. A request for an additional box or
supply must be submitted [for approval] to the Executive
Secretary of the Board for approval.
[11.3.3] 11.3.4 Approved lists for legend
[prescription] drug boxes [stock].
[11.3.3.1] 11.3.4.1 The most current
approved signed list or lists for each box must be maintained
in the pharmacy, attached to the box or boxes in the facility,
and shall become part of the Policy and Procedures manual.
[11.3.3.2] 11.3.4.2 When additions or
deletions are made, then a complete revised list must be
submitted for Board approval [to the Executive Secretary
of the Board.].
[11.3.3.3 Location site(s) where each box
will be stored in the facility must be included on each list
submitted.
11.3.3.4 When there is a change of the
provider pharmacy all stock lists, even if unchanged,
must be submitted for approval to the Executive
Secretary of the Board within 15 days of initiation of
pharmacy services.]
[11.3.4] 11.3.5 Accountability for legend
[prescription] stock usage [drugs]
[11.3.4.1] 11.3.5.1 The pharmacy provider
must be contacted within 24 hours after medication is used
from the supply. The pharmacist shall review the records of
new or changed orders to assure appropriateness. These
records must indicate the patient name, location, name of
medication, strength, quantity removed, date, time and
nurses' signature. [Copies of the usage (i.e. removal)
records must be maintained at the facility in
chronological order for 3 years.
11.3.4.2 The provider pharmacy is
responsible for the accuracy of all stock drug box
contents at the time of the filling of the medication. The
replacement of approved stock medications must be
supervised by a pharmacist and documented as such
within 72 hours of usage. This check must also include
any medication that became available when the
medication is accessed. Records documenting this filling
or replacement of a stock medication by a pharmacy
must be kept for a minimum of three years at the
provider pharmacy and must be readily available for
inspection by the Board.]
[11.3.4.3] 11.3.5.2 Failure to comply with
all aspects and intent of these procedures outlined can result
in the revocation, suspension, or denial of the privilege of
having controlled substances present in these supplies [stock
medications present].
[11.3.4.4] 11.3.5.3 Continuous violations of
accountability procedures for the non controlled legend
[stock] medications may result in review proceedings before
the Board of Pharmacy.
11.4 Return Medication Procedures
11.4.1 All unused portions of any patient's
discontinued prescription medication shall be immediately
isolated [Non-controlled medication shall be destroyed
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 509
or] and returned to the pharmacist or provider pharmacy
supplying pharmaceutical services within 72 hours with the
appropriate notation of such returns for [disposal
destruction. The notation shall include the date,
quantity, and name and strength of the medication.
11.4.2 Medications for hospitalized patients
must be isolated, and may be held until the patient’s
return or permanent discharge.]
[11.4.3] 11.4.2 Destruction of discontinued
controlled patient medication and discharged or deceased
patient's controlled medication may be jointly performed by
the consultant pharmacist or provider pharmacist with a
designated nurse witness if [shall be jointly performed by
two authorized licensed personnel] within 72 hours of the
discontinuation [of the medication] or discharge of the
patient. A record of the destruction must be signed by both
parties and kept at the facility for two years.
11.5 Labeling
11.5.1 Labels on controlled substances must
show [contain the original dispensing date,] the actual
refill date and amount of medication dispensed.
11.5.2 If a unit dose system is used then the
provider pharmacy must maintain [prescription records
required by State and Federal law in addition to] a
readily retrievable record of the actual refills, amount
dispensed and accountability of the amounts used.
11.5.3 A pharmacy providing prescriptions for
inpatient use in a nursing home may label the prescription,
"to be administered according to current physician's orders."
provided that:
11.5.3.1 The MAR accurately reflects the
prescriber's current orders.
11.5.3.2 The pharmacy is informed of any
change in directions within twenty-four (24) hours and
promptly records the change on the patient's profile.
Prescriptions for leave of absence or discharge must be
labeled in compliance with 24 Del.C. §2536.
[11.5.4 A change in a medication order that
involves a direction change must be communicated to the
pharmacy within 24 hours, and the labeling on
medication currently in the facility may be handled in the
following ways:
11.5.4.1 A licensed nurse or pharmacist
may apply an accessory label to the medication which
denotes that there has been a direction change.
11.5.4.2 A label(s) with new directions
may be requested from the pharmacy and applied to the
current medication supply by a licensed nurse or
pharmacist.]
11.6 Duties of Consultant Pharmacist (CP)
11.6.1 A consultant pharmacist (CP) to a nursing
home in the State of Delaware must be licensed to practice
pharmacy in the State of Delaware. The consultant
pharmacist shall be responsible for the general supervision
of the nursing home pharmaceutical services, [and the
direct supervision of Delaware registered pharmacy
interns, who may assist in chart reviews. Supervision of
the pharmacy intern activities must be documented by
the supervising pharmacist as pertaining to chart
review.]
11.6.2 The consultant pharmacist shall provide
the administrator of a nursing home with a statement
indicating those minimum professional services that will be
provided. This statement shall be incorporated into the
nursing home [Pharmacy] Policy and Procedure Manual.
11.6.3 When a pharmacist becomes the
consultant to a nursing home, he or she must notify the
Board in writing within ten days of the starting date. The
Delaware State Board of Pharmacy shall be notified in
writing within ten days by the consultant pharmacist of
termination of said services.
[11.6.3.1 If the Consultant pharmacist
has not served in that position in the State of Delaware,
the letter of notification must contain a request for an
interview with a pharmacist on the staff of the Executive
Secretary. At that interview, the consultant pharmacist
will receive a self inspection form for nursing homes.]
11.6.4 The CP shall be responsible for the
development of written policies and procedures which shall
include, but not be limited to:
11.6.4.1 Procedures for administering the
services outlined in the statement of proposed services.
11.6.4.2 Policies governing physician
[practitioner] medication orders, [medication errors,]
automatic stop orders; medications for patient discharge and
leave of absence emergency; medication orders.
11.6.4.3 Policies and procedures
necessary to insure the safe use, administration, control and
accountability of all drugs throughout the nursing home in
compliance with [State and] Federal and State laws.
11.6.4.4 Policies and procedures outlining
the return or destruction on site of wastage for all controlled
substances [medications].
11.6.4.5 Policies governing appropriate
storage of medications, an effective drug recall procedure,
and labeling of all prescription drugs and biologicals in
accordance with [State and] Federal and State requirements.
For registered out-of-state providers an additional labeling
requirement is having their [the] toll-free telephone number
on the prescription labels.
11.6.4.6 Policies and procedures
governing patient drug regimen reviews, which shall include
procedures for reporting irregularities, and documenting that
such reviews have been performed. The provider pharmacy
is to receive copies of all physicians' [practitioners’] orders
to be reviewed with the information on the patient profiles.
11.6.5 If the nursing home has a Pharmacy and
Therapeutics Committee or Quality Assurance or
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
510 FINAL REGULATIONS
Assessment Committee, the CP shall serve on that
Committee.
11.6.6 The [pharmacist] consultant pharmacist
or designated pharmacy staff] shall make inspections of each
nursing station and related drug storage areas at least
monthly. [A pharmacy technician may assist under the
direct supervision of the consultant pharmacist.]
[11.6.6.1] Nursing station inspections must
include, but are not limited to the following[­documentation
of]: [11.6.6.1.1](1) Documentation of
medication storage area(s) (59 to 86 [degrees] Fahrenheit)
and refrigerator temperatures (36 to 46 [degrees]
Fahrenheit), [11.6.6.1.2] (2) Documentation of security of all
drugs (e.g. medication room cabinets, carts, Board approved
drug boxes), [11.6.6.1.3] (3) proper labeling, including any
accessory or cautionary instructions, [11.6.6.1.4] (4) proper
expiration [dating] dates, [11.6.6.1.5] (5) cleanliness,
[11.6.6.1.6] (6) accountability of all medication and
[interim, emergency, IV, anaphylactic boxes or kits are
properly maintained, 11.6.6.1.7] (7) interim, emergency,
IV, anaphylactic boxes or kits are properly maintained.
accountability of all medication, which includes complete
documentation for a minimum of 15% of all patients on
each unit with a minimum of 5 patients, whichever is
greater. Complete documentation includes: date
audited, patient identification, listing of all patient
medications, and a report of overages and shortages with
an explanation, if known. 11.6.6.2] A copy of these
inspection reports must be maintained at the facility [for two
years].
11.6.7 The consultant pharmacist shall review the
drug regimen of each patient monthly. Each patient's chart
will be reviewed at the facility. Documentation of the
review is accomplished in the following manner.
11.6.7.1 If the pharmacist determines that
there are no irregularities in the patient's drug regimen, he/
she must note in the patient's chart that he[/she] has
reviewed the drug regimen, found no irregularities, and sign
and date this notation. This documentation must remain on
the patients' charts for a minimum of 12 months.
11.6.7.2 If the pharmacist determines that
there are irregularities, he[/she] must prepare a drug
regimen review [report] summary which includes any
pertinent information such as the patient's diagnosis(es), the
drug regimen, any pertinent laboratory findings, dietary
considerations, etc., and his/[/her] recommendations for
improving the drug therapy of the patient. The written
summaries must be maintained in the facility. A copy must
be sent to the Medical Director, attending physician,
Administrator and the Director of Nursing. [This written
recommendation shall be forwarded to the prescribing
practitioner, with the original documentation maintained
in the patient chart.
11.6.7.3 Nursing unit inspections and a
summary report of patient drug regimen reviews must be
submitted to the Director of Nursing and the
Administrator.]
11.6.8 The CP shall be responsible for providing
information to the nursing home staff, as may be appropriate
or required, to ensure safety, understanding and compliance
with policies and procedures pertaining to pharmacy related
activities and concerns.
11.6.9 The CP shall assume all other
responsibilities required of a CP as set forth in any [State or]
Federal [or State] statutes or regulations as enacted or
amended or may be enacted or amended.
[11.7] Notwithstanding this Regulation, nothing in
the Regulation shall render a practice unlawful which is
required by Federal regulation.
Effective Date: October 11, 1996
Revision Date: April 14, 1997 (11.33.2 Stock
Medication)
12.0 Health Care Facilities
12.1 Definition
A health care facility means any organization, other
than a nursing home or hospital, which is licensed or
certified by the State to provide a physical environment for
patients in which health care services are a primary
component. These facilities include, but are not limited to:
12.1.1 Convalescent homes
12.1.2 Extended health facilities
12.1.3 Mental health facilities
12.1.4 Rehabilitation centers
12.1.5 Psychiatric centers
12.1.6 Group homes for mentally retarded
12.1.7 Group homes for mentally ill
12.1.8 Clinics
12.1.9 Residential treatment centers
12.1.10 End Stage Renal Disease Treatment
Centers
12.2 Requirements. Any health care facility in
which medication is administered and/or dispensed must
comply with all State and Federal laws regarding drug
storage, labeling, record keeping, and security. Only health
care personnel authorized by law to handle medication may
have access to medication areas.
13.0 Nuclear Pharmacy Regulations
13.1 Purpose and Scope
13.1.1 The purpose of this regulation is to
recognize the practice of nuclear pharmacy as a specialty of
pharmacy practice to be regulated by the Delaware State
Board of Pharmacy. As such, the following rules are
included to address those areas specific to this specialty
practice.
13.1.2 Nuclear Pharmacy practice refers to a
patient oriented service that embodies the scientific
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 511
knowledge and professional judgment required to improve
and promote health through the assurance of the safe and
efficacious use of radiopharmaceuticals and other drugs.
13.2 Definitions
"Authentication of Product History" includes,
but is not limited to, identifying the purchasing source, the
ultimate fate, and any intermediate handling of any
component of a radiopharmaceutical.
"Authorized Personnel" means any individual
trained through management to be permitted to perform
assigned duties in a safe and effective manner.
"Authorized User" means any individual or
institution named on a radioactive materials licensed.
"Nuclear Pharmacy" is a pharmacy which
provides radiopharmaceutical services.
"Qualified Nuclear Pharmacist" is a currently
licensed pharmacist in the State of Delaware who meets
either of the following criteria:
Must be currently certified as a nuclear
pharmacist by the Board of Pharmaceutical Specialties.
Must have successfully completed a minimum
of 700 contact hours of instruction in nuclear pharmacy and
the safe handling and use of radioactive materials from a
nationally accredited college of pharmacy or from an
American Council on Pharmaceutical Education (ACPE)­approved
training program. The training qualifications are
described in 13.6.
"Radiopharmaceutical Quality Assurance"
means, but is not limited to, the performance of tests on
radiopharmaceuticals to ascertain the radionuclidic,
radiochemical, chemical, physical, and microbiological
purity and the interpretation of the resulting data to
determine their suitability for use in humans and animals,
including internal test assessment, authentication of product
history, and the keeping of proper records.
"Radiopharmaceutical services" means, but shall
not be limited to, the procurement, storage, handling,
preparation, labeling, quality assurance testing, dispensing,
delivery, record keeping, and disposal of
radiopharmaceuticals and other drugs.
"Radiopharmaceuticals" are radioactive drugs as
defined by the FDA to include any drug which exhibits
spontaneous disintegration of unstable nuclei with the
emission of nuclear particles or photons and includes any
non radioactive reagent kit or nuclide generator which is
intended to be used in the preparation of any such substance.
This definition does not include drugs such as carbon
containing compounds or potassium containing salts which
contain trace quantities of naturally occurring radionuclides.
The term radiopharmaceutical also includes any biological
product which is labeled with a radionuclide or intended
solely to be labeled with a radionuclide.
"Restricted Area" means any area the access to
which is controlled by the license for purpose of protection
of individuals from exposure to radiation and radioactive
materials.
"Unrestricted Area" means any area the access to
which is not controlled by the licensee for purpose of
protection of individuals from exposure to radiation and
radioactive materials.
13.3 Nuclear Pharmacy—general Requirements.
The process employed by any permit holder in this state
concerning the handling of radioactive materials must
involve procedures for the purchase receipt, storage,
manipulation, compounding, distribution and disposal of
radioactive materials. In order to insure the public health
and safety in this respect, a nuclear pharmacy in this state
shall meet the following general requirements:
13.3.1 A nuclear pharmacy may be managed only
by a qualified pharmacist acting in the capacity of a
pharmacist-in-charge who shall be responsible for the
compliance with all laws and regulations, both state and
federal pertaining to radiopharmaceuticals and
radiopharmaceutical services. An actively licensed qualified
nuclear pharmacist must personally supervise the operation
of only one nuclear pharmacy when radiopharmaceutical
services are being performed.
13.3.2 The nuclear pharmacy area shall be
secured from access by unauthorized personnel.
13.3.3 Each nuclear pharmacist shall maintain
accurate records of the acquisition, inventory, distribution,
and disposal of all radiopharmaceuticals.
13.3.4 All nuclear pharmacies shall provide
adequate space for radioactive storage and a product decay
area.
13.3.5 Nuclear pharmacies shall comply with all
applicable laws and regulations of federal and state agencies
for the procurement, secure storage, inventory, preparation,
distribution and disposal of radiopharmaceuticals and other
drugs.
13.3.6 Radiopharmaceuticals are to be distributed
only upon a prescription order from an authorized licensed
medical practitioner or through the practitioner's agent.
13.3.7 A nuclear pharmacist shall transfer
radioactive materials in accordance with all applicable laws
and regulations.
13.3.8 A nuclear pharmacy upon receiving an
oral prescription order for a radiopharmaceutical shall
immediately have the prescription order reduced to writing
or recorded in a data processing system which shall contain
at least the following:
13.3.8.1 the name of the authorized user
or his agent;
13.3.8.2 the date of distribution and the
time of administration of the radiopharmaceutical;
13.3.8.3 the name of procedure;
13.3.8.4 the name of the
radiopharmaceutical;
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
512 FINAL REGULATIONS
13.3.8.5 the prescription number assigned
to the order for the radiopharmaceutical;
13.3.8.6 any specific instructions; and
13.3.8.7 the initials of the person who
received the order.
13.3.8.8 When the order is for a
therapeutic or blood-product radiopharmaceutical, the
patient's name must be obtained and recorded prior to
dispensing.
13.3.8.9 If the product is for a therapeutic
radiopharmaceutical the patient's name must be obtained and
recorded (i.e. verified) by a pharmacist when the pharmacy
receives an oral prescription.
13.3.9 In addition to other labeling requirements
of the Board of Pharmacy for non-radioactive
pharmaceuticals, the immediate outer container shield of a
radiopharmaceutical to be dispensed shall be labeled with:
13.3.9.1 the name and address of the
pharmacy;
13.3.9.2 the name of the prescriber;
13.3.9.3 the name of the procedure;
13.3.9.4 the standard radiation symbol;
13.3.9.5 the words "caution Radioactive
material";
13.3.9.6 the prescription number of the
radiopharmaceutical;
13.3.9.7 the radionuclide and chemical
form;
13.3.9.8 the amount of radioactive
material contained in millicuries (mCi), or microcuries (uCi)
and the corresponding time that applies to this activity, if
different from 13.3.9.9 of this paragraph;
13.3.9.9 the calibration date and time;
13.3.9.10 the expiration date and time;
13.3.9.11 if a liquid, the volume;
13.3.9.12 if a solid, the number of items or
weight;
13.3.9.13 if a gas, the number of ampules or
vials;
13.3.9.14 molybdenum-99 content to USP
limits; and
13.3.9.15 the name of the patient or the
words "Physicians Use Only" in the absence of a patient
name. If the order is for a therapeutic or blood-product
radiopharmaceutical, the patient's name must be obtained
and recorded prior to dispensing. The requirements of this
subsection shall be met when the name of the patient is
readily retrievable from the physician upon demand.
13.3.10 The immediate inner container label
of a radiopharmaceutical to be distributed shall also be
labeled with:
13.3.10.1 the standard radiation symbol
13.3.10.2 the words "Caution Radioactive
Material"
13.3.10.3 the radionuclide;
13.3.10.4 the amount of radioactivity in
mCi or uCi;
13.3.10.5 the calibration date and time
13.3.10.6 the prescription number of the
radiopharmaceutical; and
13.3.10.7 the pharmacy name; and
13.3.10.8 the name of the patient or the
words "Physicians use only" in the absence of a patient
name. If the order is for a therapeutic or blood-product
radiopharmaceutical, the patient's name must be on the label.
13.4 Nuclear Pharmacy—minimum Requirements. All
nuclear pharmacies must meet the requirements of the
Department of Health and Rehabilitative Services for the
control of radiation hazards and applicable requirements of
the Federal Food and Drug Administration. In addition, in
order to insure compliance with general safety requirements,
the following additional minimum requirements must be met
by a nuclear pharmacy:
13.4.1 Physical Facilities
13.4.1.1 Each nuclear pharmacy shall
have an area for the storage, compounding, distribution and
disposal of radiopharmaceuticals which shall be adequate to
completely separate such radioactive pharmaceuticals from
pharmacy areas which contain non radioactive medicinal
drugs.
13.4.1.2 The nuclear pharmacy facility
shall have adequate space commensurate with the scope of
services.
13.4.2 Equipment:
13.4.2.1 Vertical laminar air flow unit
(hood) used as a shielded radiation containment drawing
station;
13.4.2.2 Exhaust/fume unit (hood) with
engineering controls to assure airborne concentrations in
compliance with federal regulations for storage and handling
of all volatile radioactive drugs, if applicable;
13.4.2.3 Vertical laminar flow biological
safety cabinet to be used for all compounding of applicable
radiopharmaceuticals (i.e. blood products; white blood cells
procedures);
13.4.2.4 Dose calibrator;
13.4.2.5 Well scintillation counters;
13.4.2.6 Area rate meters;
13.4.2.7 Geiger-Mueller (GM) Survey
meters;
13.4.2.8 Refrigerator;
13.4.2.9 Microscope;
13.4.2.10 Hemacytometer
13.4.2.11 Leaded glass syringe shields;
13.4.2.12 Personal radiation detection
devices
13.4.3 Supplies:
13.4.3.1 Syringes and vials required to
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
1
2
3
4
5
6
1
2
3
4
5
6
7
FINAL REGULATIONS 513
perform practice;
13.4.3.2 Disposable gloves and protective
lab coats;
13.4.3.2 Supplies to insure sterile
practices for I.V. solutions and preparations;
13.4.3.3 Supplies to perform thin layer
chromotography;
13.4.3.4 Lead transport shields for
syringes and vials;
13.4.3.5 D.O.T. type 7A approved
transport containers and other labels and supplies for
shipping radioactive materials.
13.4.4 Library/Current references: In addition to
the reference requirements of Regulation 3.0, a nuclear
pharmacy shall maintain a reference library which shall
include the following:
13.4.4. NRC Title 10 CFR, Code of
Federal Regulations;
13.4.4. NRC Title 21 CFR, Code of
Federal Regulations;
13.4.4. NRC Title 49 CFR, Code of
Federal Regulations;
13.4.4. NABP Nuclear Pharmacy
Practice Guidelines;
13.4.4. A minimum of three current
edition texts dealing with nuclear medicine science;
13.4.4. A copy of the procedure manual.
13.4.4.7 Delaware Radiation Control
Regulations
13.5 Records.
13.5.1 Policy and procedure manual. All nuclear
pharmacies shall maintain a policy and procedure manual.
The nuclear pharmacy policy and procedure manual is a
compilation of written policy and procedure statements.
13.5.2 A technical operations manual governing
all nuclear pharmacy functions shall be prepared. It shall be
continually revised to reflect changes in techniques,
organization, etc. All pharmacy personnel shall be familiar
with the contents of the manual.
13.5.3 The nuclear pharmacy policies and
procedures manual shall be prepared by the pharmacist-incharge
with input from other pharmacy staff members.
13.6 Training Qualifications
13.6.1 A pharmacist licensed to practice
pharmacy in this state who performs a radiopharmaceutical
service shall, prior to engaging in such specialized practice,
be qualified as a nuclear pharmacist and licensed by the
Board of Pharmacy.
13.6.2 Qualifications for a nuclear pharmacist are
as follows:
13.6.2.1 A pharmacist shall:
13.6.2.1.1 be a pharmacist licensed by
the Board to practice pharmacy in Delaware.
13.6.2.1.2 submit to the Board either:
13.6.2.1.2.1 Certification that he or
she has successfully completed a minimum of four months
on the job training providing radioactive drug services under
the supervision of a nuclear pharmacist;
13.6.2.1.2.2 certification that he or
she has successfully completed a nuclear pharmacy training
program in an accredited college; or
13.6.2.1.2.3 an application, in
affidavit form, along with such other information the Board
may require, requesting partial or equivalent credit for
education and experience gained in programs not sponsored
by an accredited college of pharmacy.
13.6.2.2 A qualified pharmacist seeking
licensure as a nuclear pharmacist in the state shall submit to
the Board of Pharmacy a course outline from an accredited
college of pharmacy or other program recognized by the
Delaware Board of Pharmacy (a program comparable to
those offered by accredited colleges of pharmacy for the
training of nuclear pharmacists), and a certificate of training
which provides a minimum of 200 clock hours of formal
didactic training, which includes:
13.6.2.2.1 Radiation protection (45
hours);
13.6.2.2.2 Radiation physics and
instrumentation (85 hours);
13.6.2.2.3 Mathematics of radioactivity
(20 hours);
13.6.2.2.4 Radiation biology (20
hours); and
13.6.2.2.5 Radiopharmaceutical
chemistry (30 hours).
13.6.2.3 Proof of attaining a minimum of
500 hours of clinical nuclear pharmacy training under the
supervision of a qualified nuclear pharmacist. The training
and experience shall include, but shall not be limited to the
following:
13.6.2.3. Procurement
13.6.2.3. Compounding
13.6.2.3. Quality Assurance
13.6.2.3. Dispensing
13.6.2.3. Distribution
13.6.2.3. Health and Safety
13.6.2.3. Provisions of Information
and Consultation
13.6.2.3.8 Monitoring patient outcome
13.6.2.3.9 Research and Development
13.7 Nuclear Pharmacist Continuing Education
13.7.1 Proof satisfactory that a nuclear
pharmacist licensed pursuant to this section, has met the
requirements necessary for biennial renewal of this license
shall be constituted by the following:
13.7.1.1 The licensee has completed no
less than ten (10) out of the total requirements of 30 hours of
coursework each two-year period by or through a
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
514 FINAL REGULATIONS
committee-approved provider (e.g ACPE), instructionally
designed to provide in-depth treatment of nuclear pharmacy
practice.
13.7.1.2 Content of nuclear pharmacist
continuing education program can include, but not be limited
to the following:
13.7.1.2.1 Formulation and quality
control issues in nuclear pharmacy
13.7.1.2.2 Radionuclide therapy in
nuclear pharmacy
13.7.1.2.3 Radiopharmaceutical
updates for target organs
13.7.1.2.4 Current concepts in radiation
physics, radiation biology and exposure.
13.7.1.2.5 Current principles of
radiation safety
13.7.1.2.6 Current principles of nuclear
pharmacy management
13.7.1.2.7 Advances in drug,
radiopharmaceutical, or related technology (including but
not limited to monoclonal antibodies, peptides, magnetic
resonance imaging, positron emission tomography, novel
radionuclide therapy and other applicable issues.
Effective 09/23/95
14.0 Administration of Injectable Medications
The purpose of this regulation is to implement
provisions relating to the training, administration, and
documentation of injectable medications, biologicals, and
adult immunizations by pharmacists, pursuant to Chapter 25,
Title 24 of the Delaware Code relating to Pharmacy.
14.1 Educational Requirements
14.1.1 In order to administer injectable
medications, biologicals, and adult immunizations a licensed
pharmacist shall provide proof that the following
requirements have been satisfied:
14.1.1.1 The satisfactory completion of an
academic and practical curriculum approved by the Board of
Pharmacy which includes, but is not limited to, disease
epidemiology, vaccine characteristics, injection technique,
emergency response to adverse events, and related topics.
14.1.1.2 A current Cardio-Pulmonary
Resuscitation (CPR) certificate acceptable to the Board of
Pharmacy.
14.1.2 A registered pharmacist may only
administer injections consistent with public health and safety
and in a competent manner consistent with the academic
curriculum and training completed.
14.1.3 Continued competency shall be
maintained. A minimum of two hours (0.2 C.E.U.) of the
thirty hour requirement for continuing education, every
licensure period, must be dedicated to this area of practice.
14.1.4 Documentation of the satisfactory
completion of the proper academic and practical training
requirements shall be listed in a policy and procedures
manual available for inspection by the Board of Pharmacy.
Maintaining such a policy and procedures manual shall be
the responsibility of each registered pharmacist
administering injections.
14.2 Practice Requirements
14.2.1 The pharmacist must maintain a manual
with policies consistent with OSHA (Occupational Exposure
to Bloodborne Pathogens) and procedures for dealing with
acute adverse events.
14.2.2 Prescriptions and/or physician-approved
written protocols will be maintained and available for
inspection by the Board of Pharmacy.
14.2.3 The pharmacist, before administering an
injectable medication, biological, or immunization, must
counsel the patient and/or the patient’s representative about
contraindications and inform them in writing in specific and
readily understood terms about the risks and benefits. A
signed copy of the patient’s consent shall be filed and
available for inspection by the Board of Pharmacy.
14.2.4 The pharmacist must document all
injections made and have such documentation available for
inspection by the Board of Pharmacy. Documentation shall
include:
14.2.4.1 Patient’s name, address, phone
number, date of birth, and gender.
14.2.4.2 Medication or vaccine
administered, expiration date, lot number, site of
administration, dose administered.
14.2.4.3 Date of original order and the
date of administration(s).
14.2.4.4 The name of the prescribing
practitioner and the pharmacist administering the dose.
14.2.5 The pharmacist must document fully and
report all clinically significant adverse events to the primarycare
provider and to the Vaccine Adverse Event Reporting
System (VAERS) when appropriate.
14.2.6 The pharmacist shall provide
documentation to each person receiving immunizations and
when appropriate to the Immunization Section of the
Department of Health and Social Services so the names of
those individuals can be added to theVaccination Registry.
14.2.7 All documentation and records required by
this Regulation must be maintained for a period of not less
than three years.
14.3 Classes and Indications of Approved
Medications. Classes of medications shall include injectable
medications, immunizations, and biologicals contained in
the list of Approved Drug Products with Therapeutic
Equivalence Evaluations or drugs under clinical study when
administered in accordance with indications approved by the
Food & Drug Administration.
14.4 Authorization. Only those registered
pharmacists meeting the requirements of this Regulation
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 515
shall administer injectable medications, biologicals, and
adult immunizations. The Board of Pharmacy shall maintain
a current list of those pharmacists so authorized. It is the
responsibility of each registered pharmacist to maintain his
or her current status on such list.
See 3 DE Reg. 431 (9/1/99)
Effective Date: September 11, 1999
15.0 Automated Pharmacy Systems
15.1 Purpose and Scope
15.1.1 The purpose of this regulation is to
recognize the use of automated pharmacy systems in
community, institutional, and long term care pharmacy
settings.
15.2 Definitions
15.2.1 "Automated Pharmacy Systems" include,
but are not limited to, mechanical systems that perform
operations or activities, other than compounding or
administration, relative to storage, packaging, dispensing, or
distribution of medications, and which collects, controls, and
maintains all transaction information.
15.3 Automated Pharmacy Systems – General
Requirements
15.3.1 Personnel
15.3.1.1 Duties and Responsibilities of the
Permit Holder
15.3.1.1.1 The Permit Holder has the
following responsibilities:
15.3.1.1.1.1 Assuring that the
Automated Pharmacy System is in good working order and
accurately dispenses the correct strength, dosage form, and
quantity of the drug prescribed while maintaining
appropriate record keeping and security safeguards.
15.3.1.1.1.2 Developing and
implementing an ongoing quality assurance program that
monitors performance of the Automated Pharmacy System,
which is evidenced by written policies and procedures
developed by the pharmacy.
15.3.1.1.1.3 Providing the Board
with 60 days prior written notice of the installation, removal,
substantive change of Automated Pharmacy Systems. Such
notice must include, but is not limited to:
15.3.1.1.1.3.1 the name and
address of the pharmacy;
15.3.1.1.1.3.2 the location of
the automated equipment; and
15.3.1.1.1.3.3 the
identification of the responsible pharmacist.
15.3.1.1.1.3.4 policies and
procedures for system operations (for initial installations).
15.3.1.1.1.4 Obtaining written
approval and authorization from the Board of Pharmacy
prior to implementation.
15.3.2 Pharmacy Practice
15.3.2.1 Automated Pharmacy Systems
15.3.2.1.1 Automated Pharmacy
Systems can be utilized in licensed pharmacies, remote
locations under the jurisdiction of the Board of Pharmacy,
and licensed health care facilities where legally permissible
and shall comply with the following provisions:
15.3.2.1.1.1 Documentation as to
type of equipment, serial numbers, content, policies and
procedures, and location shall be maintained on-site in the
pharmacy for review by an agent of the Board of Pharmacy.
Such documentation shall include, but is not limited to:
15.3.2.1.1.1.1 Name and
address of the pharmacy and/or licensed health care facility
where the Automated Pharmacy System(s) is being used;
15.3.2.1.1.1.2 Manufacturer’s
name and model;
15.3.2.1.1.1.3 Description of
how the device is used;
15.3.2.1.1.1.4 Quality
assurance procedures to determine continued appropriate use
of the automated device; and
15.3.2.1.1.1.5 Polices and
procedures for system operation, safety, security, accuracy,
patient confidentiality, access, and malfunction.
15.3.2.1.1.1.2 Automated
pharmacy Systems shall be used only in setting where there
is an established program of pharmaceutical care that
ensures medication orders are reviewed by a pharmacist in
accordance with established policies and procedures and
good pharmacy practice.
15.3.2.1.1.1.3 All policies and
procedures must be maintained in the pharmacy responsible
for the system and, if the system is not located within the
facility where the pharmacy is located, at the location where
the system is being used.
15.3.2.1.1.1.4 Automated
Pharmacy Systems shall have adequate security systems and
procedures, evidenced by written policies and procedures,
to:
15.3.2.1.1.1.4.1 Prevent
unauthorized access and to comply with Federal and State
regulations; and
15.3.2.1.1.1.4.2 Maintain
patient confidentiality.
15.3.2.1.1.1.5 Records and/or
electronic data kept by Automated Pharmacy Systems shall
meet the following requirements:
15.3.2.1.1.1.5.1 All events
involving the contents of the Automated Pharmacy System
must be recorded electronically; and
15.3.2.1.1.1.5.2 Records must
be maintained by the pharmacy and must be readily available
to the Board. Such records must be maintained for a period
of three (3) years and shall include:
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
516 FINAL REGULATIONS
15.3.2.1.1.1.5.2.1 identity of
system accessed;
15.3.2.1.1.1.5.2.2
identification of the individual accessing the system;
15.3.2.1.1.1.5.2.3 type of
transaction;
15.3.2.1.1.1.5.2.4 name,
strength, dosage form, and quantity of the drug accessed;
15.3.2.1.1.1.5.2.5 name of
the patient for whom the drug was ordered; and
15.3.2.1.1.1.5.2.6 such
additional information as the pharmacist-in-charge may
deem necessary.
15.3.2.1.1.1.6 Access to and limits
on access (e.g., security levels) to the Automated Pharmacy
System must be defined by policy and procedures and must
comply with State and Federal regulations.
15.3.2.1.1.1.7 The pharmacist-incharge
or authorized designee shall be responsible for:
15.3.2.1.1.1.7.1 Assigning,
discontinuing, or changing access to the system.
15.3.2.1.1.1.7.2 Ensuring that
access to the medication complies with State and Federal
regulations.
15.3.2.1.1.1.7.3 Ensuring that
the Automated Pharmacy System is filled/stocked accurately
and in accordance with established, written policies and
procedures that ensure accuracy.
15.3.2.1.1.1.7.4 Checking the
automated pharmacy system for accurate dispensing of
medications at appropriate periodic intervals.
15.3.2.1.1.1.8 The filling/stocking
of all medication in the Automated Pharmacy System shall
be accomplished by qualified personnel under the
supervision of a licensed pharmacist.
15.3.2.1.1.1.8.1 Community/
Outpatient Pharmacy –A final check by the pharmacist is
required after the medication is placed in the final container
prior to dispensing and administration to the patient.
15.3.2.1.1.1.8.2 Hospital/
Institution – Unit based or centralized dispensing requires
the same level of supervision required in Regulation IX - B3
which states: "Supportive personnel may be utilized in
assisting the pharmacist. These persons must be supervised
by a registered pharmacist who is present within the hospital
and is responsible for the activities of those persons".
[Pharmacy technicians may be utilized in assisting the
pharmacists. These persons must be supervised by a
registered pharmacist who is present within the hospital
and is responsible for the activities of those persons.
There will be a final check by a licensed pharmacist prior
to the dispensing and administration, except where the
Board of Pharmacy grants, in writing, an exemption for
good cause shown.]
15.3.2.1.1.1.9 A record of
medication filled/stocked into an Automated Pharmacy
System shall be maintained and shall include identification
of the persons filling/ stocking and checking for accuracy.
15.3.2.1.1.1.10 All containers of
medications stored in Automated Pharmacy System shall be
packaged and labeled in accordance with Federal and State
laws and regulations.
15.3.2.1.1.1.11 All aspects of
handling controlled substances shall meet the requirements
of all State and Federal laws and regulations.
15.3.2.1.1.1.12 The Automated
Pharmacy System shall provide a mechanism for securing
and accounting for medications removed from and
subsequently returned to the Automated Pharmacy System,
all in accordance with existing State and Federal law.
15.3.2.1.1.1.13 The Automated
Pharmacy System shall provide a mechanism for securing
and accounting for wasted medications or discarded
medications in accordance with existing State and Federal
law.
See 4 DE Reg. 1502 (3/1/01)
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
24 DE Admin. Code 2925
Statutory Authority: 24 Delaware Code,
Section 2905(a)(1) & 2911(b),
(24 Del.C. §2905(a)(1), §2911(b))
ORDER ADOPTING GUIDELINES FOR
FULFILLING THE DELAWARE REAL ESTATE
EDUCATION REQUIREMENTS
AND NOW, this 12th day of September, 2002, in
accordance with 29 Del.C. § 10118 and for the reasons stated
hereinafter, the Real Estate Commission of the State of
Delaware ("the Commission") enters this Order adopting
amendments to its Guidelines for Fulfilling the Delaware
Real Estate Education Requirements.
I. Nature of the Proceedings
Pursuant to the Commission’s authority under 24 Del.C.
§§ 2905(a)(1), and 2911(b), the Commission proposed to
revise its existing Guidelines for Fulfilling the Delaware
Real Estate Education Requirements by deleting guideline
8.2 in its entirety and presenting a new guideline that
reorganizes the original content with some further
clarifications. Substantive changes include defining what
constitutes "faithful and complete attendance" and clarifying
that sponsors or providers of all continuing education shall
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 517
be responsible for conduct of their courses. Notice of the
public hearing to consider the proposed amendments to the
Guidelines for Fulfilling the Delaware Real Estate Education
Requirements was published in the Delaware Register of
Regulations dated July 1, 2002, and two Delaware
newspapers of general circulation, in accordance with 29
Del. C. § 10115. The public hearing was held on August 8,
2002, at 9:00 a.m. in Dover, Delaware, as duly noticed, and
at which a quorum of the Commission was present. The
Commission deliberated and voted on the proposed revisions
to the Guidelines for Fulfilling the Delaware Real Estate
Education Requirements. This is the Commission’s
Decision and Order ADOPTING the amendments to the
Guidelines for Fulfilling the Delaware Real Estate Education
Requirements as proposed.
II. Evidence and Information Submitted
The Commission received no written comments in
response to the notice of intention to adopt the proposed
revisions to the Guidelines for Fulfilling the Delaware Real
Estate Education Requirements. The Commission received
no oral comment at the public hearing held on August 8,
2002.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Guidelines for Fulfilling the Delaware
Real Estate Education Requirements and offered an adequate
opportunity to provide the Commission with comments. The
Commission received no written or oral comments with
regard to the adoption of the proposed revisions.
2. The proposed amendments to the Guidelines for
Fulfilling the Delaware Real Estate Education Requirements
are necessary to define what constitutes "faithful and
complete attendance" and clarify that sponsors or providers
of all continuing education shall be responsible for conduct
of their courses.
3. The Commission concludes that it has statutory
authority to promulgate rules and regulations pursuant to 24
Del.C. § 2905(a)(1), and to publish guidelines as to
acceptable courses of instruction, seminars and lectures in
accordance with 24 Del. C. § 2911(b).
4. For the foregoing reasons, the Commission
concludes that it is necessary to adopt amendments to its
Guidelines for Fulfilling the Delaware Real Estate Education
Requirements, and that such amendments are in furtherance
of its objectives set forth in 24 Del. C. Chapter 29.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Commission, IT IS ORDERED, that the Guidelines
for Fulfilling the Delaware Real Estate Education
Requirements are approved and adopted in the exact text as
set forth in Exhibit A attached hereto. The effective date of
this Order is ten (10) days from the date of its publication in
the Delaware Register of Regulations pursuant to 29 Del. C.
§ 10118(g).
BY ORDER OF THE REAL ESTATE COMMISSION
(As authenticated by a quorum of the Commission)
John R. Giles, Chairperson, President, Professional
Member
Mary B. Parker, Public Member
Joseph P. Connor, Jr., Professional Member
Harry W. Kreger, Professional Member
James D. McGinnis, Professional Member
Judy L. Bennett, Public Member
*Please note that no changes were made to the regulation
as originally proposed and published in the July 2002
issue of the Register at page 8 (6 DE Reg. 8). Therefore,
the final regulation is not being republished. Please refer
to the July 2002 issue of the Register or contact the
Division of Professional Regulation.
DEPARTMENT OF AGRICULTURE
Statutory Authority: 3 Delaware Code,
Section 1101 (3 Del.C. § 1011)
Forest Service Regulations
ORDER ADOPTING & PROMULGATING
REGULATIONS
I. NATURE OF PROCEEDINGS
Pursuant to its authority under 3 Del.C. §l101, the
Department proposed to amend its regulations concerning
erosion and sedimentation control from silvi-cultural
activities. The Department's purpose in proposing these
amendments is to streamline the procedures for responding
to potential or actual water quality problems caused by
timber harvesting activities and to establish an enforcement
and penalty scheme for those who fail to obtain and file the
necessary permits before commencing such activities.
Notice of the public hearing on the Department's
proposed amendments was published in the Delaware
Register of Regulations for August 1, 2002 as well as in two
Delaware newspapers in general circulation in accordance
with 29 Del.C. §10115. Thereafter, the public hearing was
held as noticed on Friday, September 6, 2002 before the
Department's designee, E. Austin Short, and at which time,
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
518 FINAL REGULATIONS
no public comments either written or oral having been
received, Mr. Short resolved to recommend to the Secretary
of the Department that the proposed amended regulations be
adopted. This is the Department's Decision and Order
adopting the proposed amended regulations.
II. EVIDENCE SUBMITTED AT PUBLIC HEARING
The Department received no written comments in
response to the notice of intention to adopt the proposed
amended regulations. No public comments were received at
the September 6, 2002 public hearing.
III. FINDINGS AND CONCLUSIONS
The public was given the required notice of the
Department's intention to adopt the proposed amended
regulations and was given ample opportunity to provide the
Department with comments opposing the Department's plan.
Thus, the Department concludes that its consideration of the
proposed amended regulations was entirely within its
prerogatives and statutory authority and, having received no
comments opposed to adoption, is now free to do so.
IV. ORDER
NOW THEREFORE, it is hereby ordered that:
1. The proposed amendments to the Department's
erosion and sedimentation control regulations are adopted;
2. The text of the regulations shall be in the form
attached hereto as Exhibit A;
3. The effective date of this Order is ten days from the
date of its publication in the Delaware Register of
Regulations in accordance with 29 Del.C. §10118(e); and
4. The Department reserves unto itself the authority to
issue such other and further orders in this matter as may be
just and proper.
Michael T. Scuse,
Secretary Delaware Department of Agriculture, 9/11/02
*Please note that no changes were made to the regulation
as originally proposed and published in the August 2002
issue of the Register at page 127 (6 DE Reg. 127).
Therefore, the final regulation is not being republished.
Please refer to the August 2002 issue of the Register or
contact the Division of Professional Regulation.
DEPARTMENT OF EDUCATION
PROFESSIONAL STANDARDS BOARD
14 DE Admin. Code 101
Statutory Authority: 14 Delaware Code,
Section 122(d) (14 Del.C. §122(d))
REGULATORY IMPLEMENTING ORDER
REGULATION 1511 ISSUANCE AND RENEWAL OF
CONTINUING LICENSE
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 adopt this
regulation. This regulation concerns requirements for the
issuance and renewal of a continuing license. This
regulation shall apply to the issuance and renewal of a
continuing license as established by 14 Del.C. § 1211 and §
1213. This regulation is necessary to comply with changes
in statute regarding the licensure and certification of
educators.
Notice of the proposed adoption of the regulation was
published in the News Journal and the Delaware State News
on July 24, 2002, 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 adopt this
regulation to comply with changes in statute regarding the
licensure and certification of educators.
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 §1511 in the Regulations of
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 519
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 22ND DAY of AUGUST,
2002.
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
Jacquelyn Wilson
FOR IMPLEMENTATION BY THE
DEPARTMENT OF EDUCATION:
Valerie A. Woodruff, Secretary of Education
IT IS SO ORDERED THIS 19TH DAY OF
SEPTEMBER, 2002
STATE BOARD OF EDUCATION
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert Gilsdorf
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
1.0 Content: This regulation shall apply to the issuance and
renewal of a continuing license for educators, pursuant to 14
Del. C. § 1211 and § 1213.
2.0 Definitions: The following words and terms, when
used in this regulation, shall have the following meaning
unless the context clearly indicates otherwise:
"College credit" means graduate or undergraduate level
coursework and continuing education units (CEUs)
completed at, or through, a regionally accredited college or
university.
"Clock-hour" means actual time spent in professional
development, not credit hours.
"Cooperating teacher or intern supervisor" means an
individual working with student teachers or graduate or
undergraduate interns as part of a state-approved educator
preparation program.
"Clusters" means focused groups of approved
professional development activities that lead to measurable
and observable knowledge and skills. Clusters must be
approved by the Standards Board and the State Board.
"Curriculum or assessment development" means work
with a local, state, national, or international education
agency or organization designing curriculum or assessments
for improved educational practice in an area related to an
individual’s professional responsibilities.
"Delaware Administrator Standards" means standards
for education administrators approved by the Secretary of
Education and the State Board of Education, as per 14 Del.
Admin Code 394, Delaware Administrator Standards.
"Delaware Professional Teaching Standards" means
standards of teaching approved by the Secretary of
Education and the State Board of Education, as per 14 Del.
Admin Code 393, Delaware Professional Teaching
Standards.
"Department" means the Delaware Department of
Education.
"Educational project" means an individual professional
growth project of 15 or more clock hours, including a
research project not related to a course for which credit is
claimed, completed to enhance the individual’s professional
practice, with the development of a final product or report.
"Educational travel" means a travel experience including 15
or more clock hours of work time directly related to the
individual’s professional responsibilities, including a final
project to be used to enhance the individual’s work.
"Educator" means an employee paid under 14 Del. C.
§1305.
"Exigent circumstances" means unanticipated
circumstances or circumstances beyond the educator’s
control, including, but not limited to, serious illness of the
educator or a member of his/her immediate family,
activation to active military duty, and other serious
emergencies which necessitate the educator’s temporarily
leaving active service.
"Formal study group" means documented participation
in a study group, related to an individual’s professional
responsibilities, such as reviewing, discussing, and
implementing strategies from a book or creating a group
product as part of an action research project, as a form of
professional development.
"Initial License" means a license issued as part of the
three-tiered licensure system set forth in 14 Del. C. § 1210.
"Knowledge and skills" means understandings and
abilities that, when acquired by educators, lead to more
effective instruction.
"Mentoring" means training and service in providing
mentoring support or assistance through a formally
organized and approved state or district mentoring program
to educators during the initial licensure period.
"NBPTS or similar national certification" means a
certificate from the National Board for Professional
Teaching Standards, or similar body as approved by the
Standards Board, verifying completion of all requirements in
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
520 FINAL REGULATIONS
an individual’s job-related area of the profession or, in the
case of an individual seeking, but not earning, the national
certificate, verification of the clock hours devoted to
completing the requirements for the national certificate.
"Peer coaching" means training and service as a peer
coach or peer assistant in a formally organized and approved
state or school district peer-coaching or peer assistance
program.
"Presentation" means preparation and presentation as a
workshop or conference presenter or course instructor on a
topic related to the individual’s professional responsibilities.
"Professional conference, workshop, institute, or
academy" means a program offered either within, or outside,
the state that contributes to the participant’s professional
knowledge or skills in effectively conducting his/her work in
education.
"Professional development" means classes, seminars,
workshops, collaborative work groups, learning
communities, cohort school or district teams which result in
the acquisition of knowledge and skills which lead to more
effective instruction.
"Professional development activities" means activities
designed to enhance knowledge and skill to promote
continuous professional growth and to improve educator
performance.
"Professional development cluster" or "cluster" means a
focused group of professional development activities that
leads to measurable and observable knowledge and skills.
"Professional portfolio" means a formal collection of
artifacts and exhibits that include required examples of an
individual’s professional work based upon specific
performance tasks or standards.
"Professional programs or committees" means job
related service, designed to enhance the profession.
"Publication" means the preparation of a formally
published book, article, report, study, or grant that
contributes to the education profession or adds to the body of
knowledge in an individual’s specific field, but does not
include such items prepared as part of a course for which an
individual is also claiming credit.
"Standards Board" means the Professional Standards
Board established pursuant to 14 Del. C., § 104.
"State" means State of Delaware.
"State Board" means the State Board of Education of
the State of Delaware established in response to 14 Del. C. §
104.
3.0 Issuance of Initial Continuing License: In accordance
with 14 Del. C. § 1211, the Department shall issue, upon
application, a continuing license to an educator who has
successfully completed the requirements under the initial
licensure as set forth in 14 Del. C. § 1210 and § 1211. A
continuing license is valid for 5 years unless extended
pursuant to 14 Del. C. §1216 or revoked for cause, as
defined in 14 Del. C. §1218.
3.1 An applicant for a continuing license shall submit
the approved application form to the Department. Copies of
DPAS II annual summative evaluations for the period of
initial licensure shall be submitted with an initial application
for a Continuing License An applicant with more than one
(1) unsatisfactory DPAS II annual summative evaluation
during the period of initial licensure is ineligible to be issued
a continuing license. Incomplete applications will not be
processed.
4.0 The Department may issue a continuing license to an
educator who previously held a valid Delaware certificate
that has expired.
4.1 An educator returning to employment and holding a
current standard or professional
status certificate will be issued a continuing license upon
employment.
4.2 An educator who previously held a valid Delaware
standard or professional
status certificate which has expired and who has been out of
the profession for less than three (3) years may be issued a
continuing license, valid for 5 years, upon employment and
application on the approved form and evidence of previous
Delaware certification.
4.3 An educator who holds a continuing license which
has expired who has been out of the profession for more than
three (3) years may be issued a continuing license, but must,
within the first year of employment, [engage in successfully
complete] a district-sponsored mentoring program which
focuses on current best practices in curriculum, instruction
and assessment aligned to state standards.
4.4 An educator holding a limited standard or
temporary certificate and currently
employed as an educator in a Delaware public school will be
issued a continuing license upon completing all requirements
for the current standard certificate. Requirements must be
completed by the expiration date of the limited standard or
temporary certificate.
4.5 An educator holding a current or expired
professional status or standard certificate assigned to work
outside the area covered by the professional status or
standard certificate will be issued a continuing license, with
an emergency certificate for the new area issued one year at
a time for a maximum of three years to enable the educator
to fulfill the requirements for the standard certificate in the
area of the new assignment. Professional status or standard
certificates held by an educator at the time of reassignment
will be added to the continuing license as standard
certificates.
5.0 Renewal of a Continuing License: In accordance with
14 Del. C. §1212, the Department shall renew a continuing
license, valid for an additional 5 years, to an educator who
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 521
has fulfilled the 90-clock hour requirement for professional continuing license.
development. [At least one-half of the required hours (45 5.1 Options for 
Relicensure
hours every five years) for educators must be in activities
to relate to the educator’s work with students or staff.] Re-licensure Options – 
Specifications – Teachers/
Satisfactory evidence of such completion, as set forth in 
Specialists/Administrators
Section 3.1, shall be submitted to the Department with the
application for renewal. The 90-clock hours of professional
development must have taken place during the term of the
OPTION MAX.
HOURS
HOUR VALUE VERIFICATION CRITERIA
College Credit No limit 1 semester hour =
15 clock hours.
1 quarter hr./CEU =
10 clock hours.
Official Transcripts.
Original Grade Slips.
Original Certificate of Completion
for
CEUs.
Must be completed at a regionally accredited college.
Must be taken for credit with grade of "C" or better or a
"P" in pass/fail course.
"Clusters" of
skills &
knowledge.
Planned
school Prof.
Dev. Day if
activities Part
of Approved
Cluster
No limit Verified clock hours
in completion of
cluster activities.
Approval Slip or Form Verifying
Completion.
Cluster must be prior-approved by Professional
Development & Associated Compensation Committee,
the Professional Standards Board and the State Board of
Education].
Professional
Conference/
Workshop/
Institute or
Academy
30 clock
hours per
year
45 clock
hours per
cycle
Verified clock hours
actively involved in
workshop or
conference sessions
Original Certificate of Attendance
or
Completion OR Letter from
Supervisor/Conference Staff.
Copies/ Exhibits of products
developed by Applicant.
Course Attendance Slip
Must include only time spent in those portions of the
workshop or conference program that contribute to the
participant's knowledge, competence, performance, or
effectiveness in education.
Mentoring 30 per year
45 per cycle
Verified clock hours
involved in
mentoringactivities
Activity Documentation Form.
(No prior approval required)
Must be mentoring of teacher, administrator, or
specialist.
Must be part of a formal state/local program.
Cooperating
Teacher/
Intern
Supervisor
30 per year
45 per cycle
Verified clock hours
involved in support
of student teacher or
intern
Activity Documentation Form
completed by higher education
director of field-based clinical
studies.
(No prior approval required)
Must be supervision of graduate or undergraduate intern
or student teacher in a state-approved educator
preparation program.
Presentation 10 per 3
clock hour
course; 30
per longer
course; 45
per cycle
Verified clock hours
preparing and
presenting
Activity Documentation Form*
(Prior approval required)
Must include only actual time preparing and presenting a
course, workshop, or presentation. (Clock hours limited
to first preparation and presentation of individual course,
workshop, or presentation.)
Educational
Project
30 per year
45 per cycle
Verified clock hours
completing project.
Minimum of 15
clock hours
Activity Documentation Form*
(Prior approval required)
Project must have been prior approved by the
Professional Development & Associated Compensation
Committee.
Must have obtained final approval after completion and
verification by PDAC
Curriculum/
Assessment
Development
30 per year
45 per cycle
Verified clock hours
of service;
Minimum of 3 clock
hours
Original documentation from
committee chair verifying actual
clock hours of participation
Must be service on formal committee organized by local,
state, national, or international education agency or
organization.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
522 FINAL REGULATIONS
Educational
Travel
3 per day
30 per cycle
Verified clock hours
of experience.
Minimum of 15
clock hours per
travel activity.
Final Project.
Activity Documentation Form*
(Prior approval required)
Must be prior approved by Professional Development &
Associated Compensation Committee.
Must have obtained final approval after completion and
verification by PCAC.
Professional
Programs/
Committees
30 per year
45 per cycle
Verified clock hours
of service or
experience.
Original documentation from
committee chair or activity leader
verifying actual clock hours of
participation.
Must be a formal activity provided through a recognized
local, state, national, or international education agency
or organization
Peer Coaching 30 per year
45 per cycle
Verified clock hours
of service or
experience.
Activity Documentation Form.
(No prior approval required)
Must be part of a formal program.
Publication 30 per year
45 per cycle
30 clock hours for
book.
Up to 15 clock
hours per other
publication.
Copy of Publication or Document. Must contribute to the education profession or 
add to the
body of knowledge in the individual's specific field.
Must be commercially published or a formally approved
document or formally published in a medium sanctioned
by a recognized state or national agency or organization.
If a grant, must be approved for funding.
Professional
Portfolio (to
be developed
by Standards
Board).
30 per year
45 per cycle
45 clock hours for
completed and
approved portfolio.
The Completed/Approved
Portfolio.
Must satisfy the standards established for teaching
portfolios.
Must be submitted to DOE by December 31 of the final
year of the certificate for assessment and approval.
NBPTS
Certification
or similar
National
Certification
30 per year
45 per cycle
45 clock hours for
attaining national
certification
Not complete –
verified clock hours
completing portfolio
activities.
A Valid Copy of the National
Certificate.
For candidate not completing
certificate -
Activity Documentation Form.
(No prior approval required)
Holds a certificate indicated by NBPTS as related to an
individual’s work or assignment.
Certificate or participation as a candidate must be
completed and verified by the expiration date of the
Delaware certificate.
Formal Study
Groups
30 per year
45 per cycle
Verified clock hours
working as a
member of a study
group.
Activity Documentation Form and
The Product of the Study.*
(Prior approval required)
Must relate to the individual’s work or assignment.
Must include a product.
5.2 Documentation of Clock Hours for Relicensure
5.2.1 For renewal of the continuing license,
educators may complete and document clock hours for the
variety of activities described under relicensure options.
When college or university courses are used to fulfill the
requirements, the following equivalencies will be used:
1 semester hour = 15 clock hours, 1 quarter hour = 10 clock
hours, 1 CEU = 10 clock hours.To be documented for clock
hours, activities must meet the criteria set forth in the
regulations and must be appropriately verified and applied
for. Activities requiring prior approval must be approved by
the educator’s immediate supervisor. Professional
development activities that are part of a DPAS II assistance
plan may be used to satisfy this requirement.
5.2.2 Criteria for determining if activities are
acceptable for clock hour credit include the following:
5.2.2.1 The activity enhances the knowledge
and skills in the educator’s job or contributes to his/her
school or profession.
5.2.2.2 The activity meets one of the
relicensure options.
5.2.2.3 The activity addresses one of the
standards for the educator’s area of
the profession.
5.2.2.4 The activity is completed during the
term of the educator’s current continuing license.
5.2.2.5 The activity addresses specific
Professional Teaching or Administrator Standards.
5.2.2.6 Participation in, or completion of, the
activity can be documented.
5.3 The Re-Licensure Application, Activity
Documentation Form, and, where required, original or
official documents will be used to verify activities for
renewal of a continuing license. Official transcripts or
original grade slips are required documentation for
successful completion of college courses.
5.4 For applicants who change positions (grade levels,
content areas, areas of supervisory responsibility, etc.)
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 523
during the five-year term of a continuing license, clock hours
documented must have been appropriate to the educator’s
position at the time the clock hours were completed.
6.0 To obtain renewal of a continuing license, educators are
required to participate in professional development activities
totaling 90 clock hour every five years. The 90 clock hours
must be completed during the five-year term of the license.
[At least one-half of the required hours (45 hours every 5
years) for educators must be in activities that relate to
the educator’s work with students or staff]. All activities
must relate to the 14 Del Admin. Code 393, Delaware
Professional Teaching or 14 Del. Admin Code 394,
Delaware Administrator Standards.
7.0 Candidates for renewal of a continuing license may
select from a variety of professional development options, as
set forth in the relicensure options approved by the
Professional Standards Board, set forth in Section 5.1 and
contained in the Guidelines for Issuance and Renewal of a
Continuing License. The activities selected must be beyond
the normal or specified requirements of the position.
Professional development activities which fulfill the criteria
for relicensure for which educators receive compensation
may be submitted in fulfillment of the 90-clock hour
requirement for relicensure. Graduate credits used to satisfy
the 90 clock hour requirement for license renewal may, if
part of a matriculated program, also be used for a salary
increment on the state salary schedule. The activities or
options used to satisfy the 90 clock hour requirement for
license renewal may be part of an approved professional
development cluster eligible for a salary supplement.
8.0 The Department may extend a continuing license for a
period not to exceed one year, exigent circumstances
warranting the necessity of such extension.
9.0 An educator may take a leave of absence of up to three
years with no effect upon the validity or expiration of the
continuing license.
10.0 An applicant shall disclose his or her criminal
conviction history upon application for a continuing license.
Failure to disclose a criminal conviction history is grounds
for denial or revocation of a continuing license as specified
in 14 Del. Code, § 1219.
11.0 This regulation shall apply to all requests for
continuing license, issuance and renewal, except as
specifically addressed herein. Educators holding a
Professional Status Certificate or a Standard Certificate
expiring on June 30, 2001 shall have until June 30, 2007 to
meet the new continuing license renewal standards. All
administrators in instructional areas issued a continuing
license as of July 1, 2001, shall have until June 30, 2007 to
meet the new continuing license renewal standards.
Educators holding a Professional Status Certificate or a
Standard Certificate expiring July 1, 2001 or thereafter shall
be required to satisfy the new continuing license renewal
standards as set forth herein.
PROFESSIONAL STANDARDS BOARD
Statutory Authority: 14 Delaware Code,
Section 122(d) (14 Del.C. §122(d))
REGULATORY IMPLEMENTING ORDER
REGULATION 1517 CERTIFICATION CAREER AND
TECHNICAL SPECIALIST
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 adopt this
regulation. This regulation concerns requirements for the
certification of teachers in specific career and technical
specialty areas. This regulation shall apply to the issuance of
a standard certificate for a career and technical specialist in a
specialized career and technical education program to an
individual who holds a bachelor’s degree from an accredited
college and Delaware licensure/certification in a secondary
content area pursuant to 14 Del.C. §1220. This regulation is
necessary to help ensure that all educators demonstrate high
standards for the issuance of a certificate for a career and
technical speciality area.
Notice of the proposed adoption of the regulation was
published in the News Journal and the Delaware State News
on July 24, 2002, in the form hereto attached as Exhibit "A".
The notice invited written comments. Written comment was
received from the State Council for Persons with Disabilities
and from the Governor’s Advisory Council for Exceptional
Citizens suggesting that the inclusion of a special education
course be mandatory and replace History and Philosophy/
Foundation and Organization of Career/Technical
Education. Since the educators seeking this certification
must already be certified/licensed in Delaware, they would
already have had at least one course in special education.
This certification does not apply to Trade and Industry
teachers. Therefore, no change is recommended in response
to the comments received.
II. FINDINGS OF FACTS
The Professional Standards Board and the State Board
of Education find that it is appropriate to adopt this
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
524 FINAL REGULATIONS
regulation because the regulation allows individuals who
hold a bachelor’s degree from an accredited college and
Delaware licensure/certification in a secondary content area
to seek certification as a career and technical specialist,
which is a critical needs area.
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 §1517 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 22ND DAY of AUGUST,
2002.
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
Jacquelyn Wilson
FOR IMPLEMENTATION BY THE
DEPARTMENT OF EDUCATION:
Valerie A. Woodruff, Secretary of Education
IT IS SO ORDERED THIS 19TH DAY OF
SEPTEMBER, 2002
STATE BOARD OF EDUCATION
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert Gilsdorf
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
1517 Career And Technical Specialist In
(Insert CIP & Course Title)
1.0 Content: This regulation shall apply to the issuance of a
standard certificate for a career and technical specialist in a
specialized career and technical education program, pursuant
to 14 Del. C. § 1220.
2.0 The following shall be required for the Standard
Certificate for a career and technical specialist.
2.1 Bachelor’s degree from an accredited college; and
2.2 Licensure/Certification in a secondary content
area.; and
2.3 Professional Education, which consists of 15 credit
hours, as set forth herein, which may be satisfied by
providing evidence of having fulfilled the requirement
through alternative coursework.
2.3.1 Six (6) credit hours consisting of Methods
of Teaching Career and Technical Education or Methods of/
Materials and Approaches to Career and Technical
Education and History and Philosophy/Foundation and
Organization of Career/Technical Education; and
2.3.2 Nine (9) credit hours in professional
education may be fulfilled by selecting from among the
following: Leadership for Career and Technical Educators;
Career/ Technical Lab Safety, Organization, and
Management; Student Testing and Assessment in Career/
Technical Education; Assessment of Career/Technical
Education Program, Issues in Career/Technical Education;
Practices and Problems in Integrating Academic and Career/
Technical Education; Career/Technical Occupation
Analysis/ Needs Assessment; Career/Technical Student
Organizations and Activities; Modern Technology in Career/
Technical Education; Career/Technical Education,
Community and Industry Relations; Guidance, Placement
and Follow-up in Career/Technical Education Career/
Technical Education for Special Education Students, and
2.4 Two years of successful, full-time employment,
within the last five (5) years, in an occupation directly
related to the specialty area for which the applicant is being
employed, or
2.5 Two years of full-time, post-secondary teaching
experience within the last five (5) years, in the specific area
in which the applicant is to be employed, or
2.6 A minimum of 15 credit hours, at least 6 of which
must have been completed within the last three (3) years, of
relevant course work in the specialty area for which approval
is sought.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 525
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
RESIDENTS PROTECTION
Statutory Authority: 16 Delaware Code,
Section 1101 (16 Del. C. §1101)
Regulations for Assisted Living Facilities
Nature of the Proceedings:
The Department of Health and Social Services, Division
of Long Term Care Residents Protection (DLTCRP)
initiated proceedings in accordance with 29 Delaware Code,
Chapter 101 to adopt Regulations for Assisted Living
Facilities. On February 1, 2002, DLTCRP published
proposed regulations in the Register of Regulations and
received numerous written and verbal comments at public
hearings on March 11 and March 15, 2002.
Upon review of the comments received, the Division of
Long Term Care Residents Protection issued revised
regulations which were published in the August 1 Register of
Regulations and were the subject of further public hearings
on September 4 and September 5, 2002. No comments
proposing further changes in the regulations were received at
the September hearings.
Therefore, the proposed regulations are attached and are
being promulgated as final regulations. A discussion of the
comments received during the March public hearings which
were not incorporated into the regulations is in the
accompanying Summary of Evidence.
Findings of Fact:
The Department of Health and Social Services finds that
the proposed regulations, as set forth in the attached copy,
should be adopted as final regulations. Therefore, it is
ordered that the proposed Regulations for Assisted Living
Facilities are adopted effective October 10, 2002.
Vincent P. Meconi, Secretary, September 16, 2002
Summary of Evidence:
Comments on the proposed regulations have been
received and evaluated as follows:
One comment took issue with the definition of
"Assistance With Self-Administration of Medication,"
suggesting that it should be clarified to extend beyond
facility personnel. The suggestion has not been adopted
because the regulations in Section 63.7 address medication
management in detail, including the requirement that
facilities develop written policies and procedures addressing
the issue.
A comment was received proposing that reactions and
side effects be noted in the Medication Log. That proposal
was not included because professional practice is to note
reactions and side effects in the Nurses’ Notes and the 24-
Hour Report.
A comment indicated that incontinence products should
be characterized as "DME-special needs equipment" in
addition to their description in these regulations as a
"personal care supply." That is unnecessary as the use of
"incontinence products" as an example of a personal care
supply does not exclude the use of another term to describe
incontinence products in another context.
One commenter suggested adding references to specific
subsections of 16 Del. C., Chapter 11 in the definition of
"representative." However, the entire set of regulations is
promulgated in accordance with the chapter, and individual
subsections do not need to be referenced in the regulations.
Similarly, several comments suggested that various
regulations contain restatements of the statute. These
regulations are intended to clarify the statute and deliberately
do not partially restate or paraphrase the statute which
should be referred to in its entirety.
A comment suggested that the disqualification of
eligibility for assisted living in Section 63.409A may be
overly broad because it proscribes admission if a resident
requires care by a nurse "for more than a limited period of
time." While the same regulation takes into consideration
individuals needing certain types of continuing care by
including "intermittent" care as acceptable, and the
regulations also permit limited waivers, it is the intent of
these regulations to clarify that assisted living is not a setting
in which skilled care can be adequately delivered. The
proscription cited above is intended to achieve that
objective.
The same concern about a regulation being too broad
was expressed regarding the ineligibility of an individual
with "a stable tracheostomy of less than six months’
duration." As these regulations were being developed, much
debate centered around the advisability of permitting any
residents with tracheostomies in assisted living. After
hearing medical opinion expressing the pros and cons, the
regulation was drafted to permit such residents only after the
stability of the tracheostomy was well-established. As with
the regulation discussed above, this regulation recognizes
that assisted living facilities do not provide skilled care.
One comment suggested amending Section 63.8 to
require reporting of communicable diseases. That matter is
addressed in Section 63.804.
A comment questioned the differential treatment of
tuberculosis as compared with other communicable diseases.
Under Centers for Disease Control guidelines as adopted by
the Division of Public Health, these regulations conform to
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
526 FINAL REGULATIONS
requirements for the treatment of tuberculosis and other
communicable diseases.
A commenter proposed adding the phrase "temperature
appropriate" to refer to meal services in Section 63.1101.
That same section requires compliance with the Delaware
Food Code which addresses many related matters including
the temperature of foods served.
With reference to the definition of "assisted living," a
commenter suggested adding "promotes quality of life" to
the definition. That phrase was regarded as vague and has
been replaced with the numerous specific regulations
intended to assure that appropriate care is delivered in
assisted living facilities.
One comment proposed adding the phrase "but is not
limited to" in the definition of "incident." The definition as
written is intended to clarify and standardize reporting
requirements. Adding the suggested phrase will reintroduce
the uncertainty the definition is intended to reduce.
A commenter suggested that family members be barred
from medication management. Given the widely varying
medication needs of residents and the widely varying
participation of family members in the care of residents,
such a proscription would be too broad and would increase
costs to residents who may not wish or need to purchase
medication management services from the facility.
One proposal suggested that the use of the term "entity"
in describing licensure requirements was inadequate and
should be supplemented by the addition of "person." The
regulation, as written, is intended to apply to all ownership
arrangements.
A comment indicated that partial closure of a facility
should be addressed in more detail. The regulation as
written addresses both partial and full closure of facilities.
This comment and others seem to presuppose a desire on the
part of facilities to readily discharge residents. In fact, the
opposite is the case: the reluctance of facilities to discharge
residents has resulted in numerous instances of residents in
need of skilled care who remain in assisted living when their
needs can no longer be satisfactorily met.
One comment suggested that if an exception to the
exclusion of a resident in need of "skilled monitoring,
testing, and aggressive adjustment of medications and
treatments" is permitted if an RN is present, the RN should
be employed by the facility. Such a requirement would
unnecessarily restrict a resident or family from hiring a
private-duty nurse.
A proposal that "immediate discharge" be removed
from the regulation pertaining to residents who exhibit
threatening behaviors partly misreads the intent of that
regulation. One purpose of the regulation is to clarify that
individuals exhibiting such behaviors should not be admitted
to assisted living facilities because the danger they may pose
to themselves or others is not within the capacity of such a
facility to safely manage. If a resident develops such
behaviors, immediate discharge must be an option for the
protection of other residents. Again, the seeming
presumption that facilities are anxious to discharge residents
ignores the reality that the financial incentives lead to
retention, and not discharge, of residents whose needs are
beyond the ability of the facility to meet.
A proposal indicated that residents should be able to
appeal the denial of a waiver. The regulations include
consultation with the resident and consideration of any
hardship to the resident. However, the resident is not in a
position to know the ability or lack of ability on the part of
the facility to provide the needed care nor to know the
possible existence of other waivers for residents at the same
facility which may further preclude the provision of
adequate care.
One comment proposed the removal of the provision
requiring that the resident acknowledge having reviewed all
the pertinent documents pertaining to the conditions the
facility will impose. That is a minimal protection for a
resident and should not be removed.
A comment urged that termination of a contract should
not be permitted if one member of a couple dies or is
discharged. Clearly, provisions for a new contract must be
provided when residency and services are changing. Some
residents will want or need to terminate the contract and
move. The inference of the commenter that contract
termination equates with involuntary discharge is incorrect
and fails to acknowledge the financial pressure on facilities
to keep units occupied.
The provision that the contract include the obligations
of both the facility and the resident for arranging medical
care elicited a comment that the resident’s obligations should
be excluded. The regulation remains as written: the
obligations of both parties to the contract are required to
clarify who will take responsibility for specific medical
services.
A comment suggested that a specific provision be added
to the contract specifying a time period regarding the
disposition of a deceased resident’s possessions. The
regulation is limited to specifying the responsible party in
any of the several circumstances listed, and the proposal of
the commenter is not relevant to identifying responsibility.
The regulations require a contract provision specifying
60 days notice of a rate increase except in the case of a
change in care necessitated by the resident’s medical
condition. A comment proposed that 30 days notice be
provided when a resident’s medical condition has changed.
That proposal is not accepted because arrangements to cover
the cost of medical care must begin at the time the care is
needed to assure adequate provision of such care.
A comment suggested that a reference to the care a
facility "can provide" be changed to "is licensed to provide."
The comment is not adopted as it seems to presume multiple
levels of licensure which are not in these regulations.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 527
One commenter suggested that initial training for
residential assistants and temporary agency staff should
specify a minimum number of hours. However, the
regulation to which the comment refers does not pertain to
initial training but rather to facility orientation.
On the matter of residents sharing a bedroom, a
comment suggested that the regulations specify that such
sharing should be by mutual consent. That issue is
addressed in the statute, and the particular regulation to
which the comment refers pertains to environmental and
physical plant issues only.
A comment addressed the question of whether the
reference to compliance with the Fair Housing Act might be
in conflict with the conditions which exclude admissions to
an assisted living facility. After consultation with the Justice
Department, the purpose of the regulations was clarified
with the addition of the sentence in the "Purpose" section
which reads, "The essential nature of assisted living is to
offer living arrangements to medically stable persons who do
not require skilled nursing services and supervision."
Repeated instances of individuals in serious need of skilled
nursing services or exhibiting inadequately treated medical
conditions who are being admitted to or retained in assisted
living facilities are a source of considerable concern to the
Division. When the individuals’ needs and physical safety
cannot be met because they require services beyond those
available in assisted living, the Division intends to
implement these regulations to protect those individuals.
Several comments were received proposing that assisted
living facilities that are a part of Continuing Care Retirement
Communities (CCRC) be exempt from the requirement that
an assisted living facility with more than 25 beds have a fulltime
registered nurse as a director of nursing. Such an
exemption has been proposed under the assumption that the
duties of the registered nurse in the assisted living facility
would be covered by a registered nurse who otherwise would
be providing care in the skilled facility portion of the CCRC.
Since skilled facilities must comply with the staffing
requirements of Eagle’s Law, the same registered nurse
could not perform both functions and be in compliance with
both Eagle’s Law and these regulations.
One comment suggested that a registered nurse
consultant working four hours per week should be
substituted for the registered nurse requirements in the
regulations because skilled care is not being provided.
While the commenter is correct, virtually every assisted
living resident is receiving some form of medical care, and
the observations and ongoing assessments of a registered
nurse are necessary for the well-being of those residents.
These regulations also include a requirement that the
Uniform Assessment Instrument (UAI) be completed by a
registered nurse. A comment suggested that a licensed
practical nurse could complete the UAI because an initial
assessment is only a "gathering of information" rather than a
nursing assessment. Such a perception is incorrect; the
requirement for an assessment by a registered nurse is in the
regulations specifically to ensure that the assessment is a
nursing assessment and not simply a gathering of
information.
A comment proposed further restrictions in these
regulations pertaining to assistance with self-administration
of medications (AWSAM). The AWSAM program operates
under regulations of the Board of Nursing which has a task
force reviewing those regulations. When those regulations
are revised, to the extent that they are relevant to assisted
living, they will be incorporated into the assisted living
regulations.
One comment found the numbering of the regulations
confusing and suggested that the numbering system was
duplicative. However, the numbering is as intended with
each separate section numbered in sequence, and the
numbers within each section in hundredths to permit up to 99
subsections following the section number.
The regulation which requires a fire and safety
orientation for residents, which by extension includes their
families, was questioned by one commenter who expressed
the view that orientation for family members was not
reasonable since family members are not present at all times.
While family members are not always present, the
knowledge of the appropriate fire and safety procedures is
nonetheless helpful and could make a critical difference in
an emergency.
The same comment included a suggestion that the
regulation include an acknowledgment that residents with
dementia may not remember the training. The limitations of
individuals with dementia are sufficiently known to all
involved with long term care so that such an
acknowledgment in the regulations is not necessary.
Another comment proposed a more detailed waiver
provision. However, the regulation as written adequately
covers all circumstances.
A comment expressed unfamiliarity with the term
"Instrumental Activities of Daily Living" and questioned
whether "Activities of Daily Living" and "Instrumental
Activities of Daily Living" were identical or different terms.
They are different terms, and the examples cited in the
definitions are intended to convey those differences.
A comment proposed setting out staffing requirements
similar to those for nursing facilities. Given the nursing
shortage, such a requirement could exacerbate current
difficulties nursing facilities and other facilities are
experiencing in meeting their nursing needs. Therefore, the
emphasis in these regulations is the effort to ensure that
individuals who need the level of care provided in nursing
facilities are not admitted or retained in assisted living
facilities where such care is not provided.
Finally, one comment was received which questioned
why this order did not appear when the proposed regulations
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
528 FINAL REGULATIONS
were published for a second set of public hearings. As this
order is the final order adopting the regulations, it
accompanies the final regulations rather than proposed
regulations.
*Please note that no changes were made to the regulation
as originally proposed and published in the August 1,
2002 issue of the Register at page 141 (6 DE Reg. 141).
Therefore, the final regulation is not being republished.
Please refer to the August 2002 issue of the Register or
contact the Division of Professional Regulation.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
ORDER
Delaware Health and Social Services ("Department") /
Division of Social Services initiated proceedings to
implement changes to the Division of Social Services
Manual (DSSM). The proposed change amends TANF
policy as it relates to time limits for the receipt of benefits.
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 August, 2002 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by August 31, 2002 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
Summary of Proposed Change: DSSM 3002 - Time
Limit, Temporary Welfare Program
Under the current wavier by which Delaware’s operates
its TANF program, time limits for receipt of benefits for
heads of households begin at age 19. As of September 30,
2002, Delaware’s waiver for operating its TANF program
will expire. At that time, the State of Delaware will need to
comply with existing TANF regulations.
TANF regulations require that time limits for receipt of
benefits for heads of households begin at age 18. In order to
comply with this regulation, the Division of Social Services
proposes to change existing policy at Sections 3002, 3002.1,
3002.2, 3002.3 and 3002.8, indicating that time limits for
receipt of benefits begin for heads of households at age 18.
SUMMARY OF COMMENTS RECEIVED WITH
AGENCY RESPONSE
The Governor's Advisory Council For Exceptional
Citizens (GACEC) and the State Council for Persons With
Disabilities (SCPD) provided similar observations and
comments: Specifically, the TANF program is important for
persons with disabilities and that, in general, low income
persons on SSI (and occasionally SSDI) may qualify for
TANF and be exempt from work requirements. Further, the
summary indicates that the DSS waiver (under which the
time limits for receipt of benefits for heads of households
begin at age 19) is expiring. Therefore, it proposes to adopt
the normal Federal standard under which the time period
commences to run when the head of household is age 18.
GACEC and SCPD observation/comment is that DSS is
also deleting regulations which defer application of the time
limits if the Delaware "unemployment rate does not exceed
the national average by 2% or the Delaware unemployment
rate is equal to or lower than 7.5%." Such unemployment
rate deferrals are not unusual. The Administrative
Procedures Act contemplates that agencies will provide an
accurate synopsis of the substance of the regulations and
identify other regulations that may be affected by the
proposal. See Title 29 Del.C. Sec. 10115(a)1). The GACEC
does not understand the rationale or basis for deleting the
unemployment rate provisions in its proposal. If the
unemployment rate provisions are another part of the waiver
that is expiring, and are unauthorized under general Federal
TANF law, DSS should articulate that justification.
Otherwise, it would make sense to retain the unemployment
rate provisions. If jobs are not readily available, there is less
justification for penalizing beneficiaries who are willing to
work but unable to secure employment.
DSS Response: The Division had to make this decision
because our waiver expire September 30, 2002 and the
exemption was part of the waiver.
DSS initiated revision shows language deleted in
Section 3002.2 and indicated by [Bracketed Bold text].
FINDINGS OF FACT:
The Department finds that the proposed changes as set
forth in the August, 2002 Register of Regulations, and herein
revised, should be adopted.
THEREFORE, IT IS ORDERED, that the proposed
regulations related to TANF Time Limits are adopted and
shall be final effective October 10, 2002.
Vincent P. Meconi, Secretary, July 15, 2002
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 529
REVISIONS:
3002 Time Limit, Temporary Welfare Program
Cash benefits will be time-limited for households
headed by two employable adults age 19 18 or older who are
included in the grant. For households applying on or after
01/01/2000, the lifetime time limit will be thirty-six (36)
cumulative months. Families will receive these benefits
only through participation in a pay-after-performance work
experience position or if the adults are working and the
family’s countable income is below the need standard.
Time Limits will not apply when Delaware’s
unemployment rate exceeds the national average by 2% or
when the Delaware unemployment rate is greater than 7.5%.
Time limits apply when four three conditions are met:
· the caretaker is included in the grant,
· the caretaker is age 19 18 or older,
· the caretaker is employable, and
· the unemployment rate does not exceed the national
average by 2% or the Delaware unemployment rate is equal
to or lower than 7.5%.
When one or more of the conditions listed above is not
met, the family receives benefits in the non-time limited
program known as the Children’s Program.
During the time-limited period, employable adult
recipients will receive full cash benefits only as long as they
fulfill their Contract of Mutual Responsibility, and
participate in a pay-after-performance work experience
program or they are working and family income is below the
need-standard of 75% of the Federal Poverty level.
The pay-after-performance work experience position is
intended for families who do not have unsubsidized
employment. Determine the number of hours of work
required by dividing the DABC benefit by the minimum
wage. In addition, participants will be required to conduct
up to ten (10) hours of job search each week. Failure to
comply with the job search requirements will result in an
employment and training sanction being applied as described
in Section 3011.2.
Periodic Alerts to Families Regarding Time Remaining
before the Family Reaches the Time Limit
The Division will track the time remaining before a
family’s time limits expire and alert the family. The
Division will notify families on a quarterly basis of the time
they have remaining before the time limits expire.
3002.1 Two-Parent Families - Time Limit, Temporary
Welfare Program
A.) Delaware's A Better Chance (DABC) Welfare
Reform, cash benefits are time-limited for households
headed by two employable adults age 19 18 or older who are
included in the grant. For households applying on or after
01/01/2000, the lifetime time limit will be thirty-six (36)
cumulative months. Families will receive these benefits
only through participation in a pay-after-performance work
experience position or if the adults are working at least 20
hours per week and the family has countable income is
below the need standard.
Time Limits will not apply when Delaware’s
unemployment rate exceeds the national average by 2% or
when the Delaware unemployment rate is greater than 7.5%.
Time limits apply when four three conditions are
met:
· the caretaker is included in the grant,
· the caretaker is age 19 18 or older,
· the caretaker is employable, and
· the unemployment rate does not exceed the
national average by 2% or the Delaware unemployment rate
is equal to or lower than 7.5%.
When one or more of the conditions listed above is
not met, the family receives benefits in the non-time limited
program known as the Children’s Program.
B.) During the time-limited period, employable adult
recipients will receive full cash benefits only as long as they
fulfill their Contract of Mutual Responsibility, and
participate in a pay-after-performance work experience
program or they are working and family income is below the
need-standard of 75% of the Federal Poverty level.
The pay-after-performance work experience
position is intended for families who do not have
unsubsidized employment. Determine the number of hours
of work required by dividing the DABC benefit by the
minimum wage. In addition, participants will be required to
conduct up to ten (10) hours of job search each week.
Failure to comply with the job search requirements will
result in an employment and training sanction being applied
as described in Section 3011.2.
C.) Periodic Alerts to Families Regarding Time
Remaining before the Family Reaches the Time Limit
The Division will track the time remaining before a
family’s time limits expire and alert the family. The
Division will notify families on a quarterly basis of the time
they have remaining before the time limits expire.
3002.2 Single Parent / Non-Parent Caretaker Families
Delaware's A BETTER CHANCE WELFARE
REFORM PROGRAM (DABC), cash benefits are timelimited
for households headed by an employable adult age
19 18 or older who is included in the grant. For households
applying on or after 01/01/2000, the lifetime time limit will
be thirty-six (36) cumulative months. Families will receive
benefits [for an additional twenty-four (24) cumulative
months] only through participation in a pay-afterperformance
work experience position or if the adult is
working at least 20 hours per week and the family has
countable income is below the need standard.
Time limits will not apply when Delaware’s
unemployment rate exceeds the national average by 2% or
when the Delaware unemployment rate is greater than 7.5%.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
530 FINAL REGULATIONS
Time limits apply when four three conditions are met:
· the caretaker is included in the grant;
· the caretaker is age 19 18 or older;
· the caretaker is employable; and
· the unemployment rate does not exceed the national
average by 2% or the Delaware unemployment rate is equal
to or lower than 7.5%.
When one or more of the conditions listed above is not
met, the family receives benefits in the non-time-limited
program known as the Children’s Program.
3002.3 Time Limits For Those On Assistance Prior To
01/01/2000
If a family was headed by an employable adult age 19
18 or older who was included in the grant and received
Delaware’s A Better Chance (ABC) Welfare Reform cash
benefits prior to 01/01/2000 they had a forty-eight (48)
cumulative month time limit. This lifetime limit will still
apply for those families. After twenty-four (24) cumulative
months these families can only receive benefits if the adult is
working at twenty hours per week or through participation in
a pay-after-performance work experience position. The
family must still have countable income that is below the
need standard. Families with a forty-eight (48) month time
limit who reapply for assistance on or after 01/01/2000 can
only receive benefits if the adult is working at least twenty
hours per week or if through participation in a pay-afterperformance
work experience position.
3002.8 Re-Application after the Time Limit
Assistance will be denied to employable caretakers
reapplying for benefits after the 48 cumulative month time
limit has expired, unless the caretaker proves that grounds
exist for an extension.
Benefits will be provided to these families only in the
pay-after-performance component, up to the federal
maximum of sixty (60) cumulative months in the timelimited
program (See 3002.9 Exceptions To The Time Limit
Counter.) DSS will conduct an assessment and notice the
family prior to termination of benefits (See 3002.5
Assessment Prior to Termination of Benefits).
Families headed by unemployable caretakers can
receive assistance under the Children's Program.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
ORDER
Delaware Health and Social Services ("Department") /
Division of Social Services / Food Stamp Program initiated
proceedings to implement changes to the Division of Social
Services Manual (DSSM). The proposed change amends the
policy of the Food Stamp Program in the Division of Social
Services Manual (DSSM) as it relates to the provisions of the
Farm Bill, Title IV of the Farm Security and Rural
Investment Act of 2002, enacted on May 13, 2002. These
mandatory provisions must be implemented on October 1,
2002. 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 August, 2002 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by August 31, 2002 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
SUMMARY OF PROPOSED CHANGES
1) DSSM 9007.1 - Citizenship and Alien Status:
restores food stamp eligibility to qualified aliens who are
otherwise eligible and who are receiving disability benefits
regardless of date of entry. Current law requires them to
have been in the country on August 22, 1996.
2) DSSM 9045 - Maximum Allowable Resources:
increases the resource limit for households with a disabled
member from $2,000 to $3,000, which is the same for
households with an elderly member.
SUMMARY OF COMMENTS RECEIVED WITH
AGENCY RESPONSE
The Governor's Advisory Council For Exceptional
Citizens (GACEC) and the State Council for Persons With
Disabilities (SCPD) provided similar comments, as follows:
GACEC and SCPD endorse the proposed regulations
for the following reasons:
• First, the resource limit for households with a member
with a disability is currently $2,000. See current
Sec. 9045. DSS proposes to increase the
resource limit for households with a member with a
disability to $3,000, the same as the limit for households
with an elderly member.
• Second, the current regulation allows aliens lawfully
admitted on August 22, 1996 and receiving
disability benefits to be eligible for food stamps.
The proposed regulation deletes the date so a lawfully
admitted alien with a disability may be eligible
for food stamps regardless of date of entry.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 531
FINDINGS OF FACT:
The Department finds that the proposed changes as set
forth in the August, 2002 Register of Regulations should be
adopted.
THEREFORE, IT IS ORDERED, that the proposed
regulations of the Food Stamp Program related to the Farm
Bill enacted on May 13, 2002 are adopted and shall be final
effective October 10, 2002.
Vincent P. Meconi, Secretary, September 16, 2002
REVISIONS:
9007.1 Citizenship and alien status
(273.4)
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 full-time 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
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;
(C) lawfully in US on 8/22/96 and is now
receiving disability or blind (payments listed under DSSM
9013.1);
9045 Maximum Allowable Resources
[273.8]
Resource standards of eligibility apply to all applicant
households, including Public Assistance, General
Assistance, and SSI households. The maximum allowed
resources, including both liquid and non-liquid assets of all
members of all applicant households may not exceed $2,000,
except that, for households including a member(s) age 60 or
over or disabled per DSSM 9013.1, such resources will not
exceed $3,000. Households which that are categorically
eligible as defined in DSSM 9042 Categorically Eligible
Households do not have to meet the resource limits or
definitions in this section.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
532 FINAL REGULATIONS
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
ORDER
Delaware Health and Social Services ("Department") /
Division of Social Services / Medicaid/Medical Assistance
Programs initiated proceedings to implement changes to the
Division of Social Services Manual (DSSM). The proposed
changes amends policies related to Third Party Liability,
Diamond State Partners and the Breast and Cervical Cancer
Group. 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 August, 2002 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by August 31, 2002 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
Summary of Proposed Change: DSSM 14600, 16110,
16210, 16220.4, 16310.3, 18200.2 - Third Party Liability
Change the name from CHAMPUS to Military Health
Insurance for Active Duty, Retired Military and their
Dependents. Add this to the list of comprehensive health
insurance under Delaware Healthy Children Program.
Summary of Proposed Change: DSSM 14810, 14900,
15160, 15505, 16210, 16220.4, 16220.5, 16500.2 -
Diamond State Partners (DSP)
Add information about Diamond State Partners being a
Medicaid only managed care organization.
Summary of Proposed Change: DSSM 15503 - Breast
and Cervical Cancer Group
Clarify that there are only two screening categories for
the Breast and Cervical Cancer Group.
SUMMARY OF COMMENTS RECEIVED WITH
AGENCY RESPONSE
The Governor's Advisory Council For Exceptional
Citizens (GACEC) and the State Council for Persons With
Disabilities (SCPD) provided similar observations and
recommendations.
This regulation would effect some technical and
substantive amendments to managed care regulations
affecting the Medicaid and Delaware Healthy Children
(Federal "CHIP") programs. The GACEC and SCPD have
the following observations and recommendations:
The Councils' main concern is with retroactivity. Prior
to the inception of the Diamond State Health Plan (DSHP),
DSS authorized retroactive coverage of Medicaid to medical
bills accruing 3 months prior to the month of application.
Such retroactive coverage was eliminated for managed care
enrollees in 1996 when the DSHP was adopted. See Secs.
14920.1 and 14920.2. It was retained for persons excluded
from managed care (e.g. ICF/MR residents; HCBS waiver
enrollees). Id. Proposed Sec. 16220.5 provides that covered
adults are eligible for Medicaid coverage effective with the
date of MCO enrollment. Unfortunately, an applicant may
be determined eligible for Medicaid and actual enrollment in
an MCO could be delayed by several factors (e.g.
investigation of different optional coverages between First
State and Diamond State Partners; investigation of whether
beneficiary’s PCP or health care providers are part of
networks of First State or Diamond State Partners; MCO
processing delays; delays in notifying applicant of approval
of application). Moreover, although DSS generally has 45-
90 days to determine Medicaid eligibility [42 C.F.R. Sec.
435.911], this time period is not uniformly met. For
example, the Delaware CarePlan Trust reports several
instances of lengthy delays in approving Medicaid
applications for DDDS clients. This can result in inability to
access medical care (due to lack of Medicaid) or
accumulation of legitimate bills that Medicaid will never
cover. As DSS notes in Sec. 14900, this program is designed
to meet the needs of "Delaware’s most vulnerable
populations."
GACEC and SCPD encourage DSS to reconsider its
retroactive coverage approach. At a minimum, the following
options could be considered. Medicaid coverage could
begin:
1) the date of approval of the application; 2) the first
of the month in which the application is approved; 3) the first
of the month in which the beneficiary enrolls in the MCO; or
4) the earlier of the date of enrollment in the MCO or
approval of the application contingent upon the beneficiary’s
prompt enrollment in an MCO within 10 days of notification
of approval. In each of these scenarios, the applicant is not
penalized by delays in notification of approval or delays in
processing MCO enrollment.
DSS Response: As noted in your letters, retroactive
Medicaid coverage was eliminated in 1996 with the
inception of the Diamond State Health Plan. The proposed
regulations make no changes to this policy, but announce the
implementation of a Medicaid only managed care
organization, Diamond State Partners. In conjunction with
the July 1, 2002, implementation of Diamond State Partners,
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 533
DSS has introduced a bimonthly-managed care enrollment
process to assure that individuals are enrolled as quickly as
possible. Further, except for the adult expansion group, an
eligibility category established as a result of the 1115
Managed Care Waiver, Medicaid eligibility begins on the
first of the month of application.
FINDINGS OF FACT:
The Department finds that the proposed changes as set
forth in the August, 2002 Register of Regulations should be
adopted.
THEREFORE, IT IS ORDERED, that the proposed
regulations of the Medicaid/Medical Assistance Programs
related to Third Party Liability, Diamond State Partners, and
the Breast and Cervical Cancer Group are adopted and shall
be final effective October 10, 2002.
Vincent P. Meconi, Secretary, September 16, 2002
REVISIONS:
14600 Third-Party Liability
Some Medicaid recipients are covered by other medical
insurance plans. Examples of other resources are Medicare,
employment related health insurance, Union Health &
Welfare Funds, national Blue Cross and Blue Shield plans,
CHAMPUS, Military Health Insurance for Active Duty,
Retired Military, and their dependents, workmen's
compensation, and no-fault automobile coverage. When a
recipient receives payment from an insurance carrier, court
settlement, etc. for any medical services paid by Medicaid,
the recipient is obligated to reimburse the program for those
related services. All such cases must be referred to the Third
Party Liability Unit at the Medicaid State Office.
14680 Third Party Liability Guide
To aid in turning up other possible sources of coverage,
the following guide has been prepared.
If You Find: Then A Case Member May
Be Eligible For:
A case member, spouse of a CHAMPUS, Military
case member, absent parent, Health Insurance for Active
or step-parent is ACTIVE Duty, Retired Military, and
DUTY MILITARY or a their dependents, VA
VETERAN Health coverage
14810 Continuously Eligible Newborns
An infant born to a woman eligible for and receiving
Delaware Medicaid (including emergency services and labor
and delivery only coverage) on the date of the child's birth is
deemed to have filed an application and been found eligible
on the date of birth and to remain eligible for 1 year
provided:
• the child resides continuously in the mother's
household, and
• for children born on or after January 1, 1991, the
mother remains eligible for Medicaid or would
have remained eligible if she were still pregnant.
For purposes of deemed eligibility, the newborn will be
considered to be a member of the mother's household even if
the baby is continuously hospitalized after birth, unless the
mother has legally relinquished control of the child.
A mother (who is not required to enroll in the Diamond
State Health Plan or Diamond State Partners can apply after
a child is born and we will determine three month retroactive
coverage. If the mother is determined retroactively eligible
in a month prior to the birth (still pregnant), or in the month
of birth, the baby will be deemed eligible for one year.
EXCEPTION: If the mother is eligible for enrollment
in the Diamond State Health Plan or Diamond State Partners
she cannot apply for retroactive coverage. She must apply
for and be found eligible for Medicaid in the month of birth
or in a month prior to the month of birth (while still
pregnant) in order for the newborn to be deemed eligible. If
the newborn is not deemed eligible, a separate eligibility
determination must be made.
14900 Enrollment In Managed Care
On May 17, 1995, Delaware received approval from the
Health Care Financing Administration for a Section 1115
Demonstration Waiver that is known as the Diamond State
Health Plan. The basic idea behind this initiative is to use
managed care principles and a strong quality assurance
program to revamp the way health care is delivered to
Delaware's most vulnerable populations. The Diamond
State Health Plan is designed to provide a basic set of health
care benefits to current Medicaid beneficiaries as well as
uninsured individuals in Delaware who have income at or
below 100% of the Federal Poverty Level (FPL). The
demonstration waiver will mainstream certain Medicaid
recipients into managed care to increase and improve access
to medical service while improving cost effectiveness and
slowing the rate of growth in health care costs.
Effective July 1, 2002, a Medicaid only managed care
organization, Diamond State Partners, is implemented.
Individuals may enroll in either the Diamond State Health
Plan or Diamond State Partners.
The majority of the Medicaid population receiving non
institutional services will be enrolled into the Diamond State
Health Plan or Diamond State Partners. Recipients in the
cash assistance programs (TANF/AFDC, SSI, and GA) as
well as the TANF/AFDC-related groups, SSI-related
groups, and poverty level groups will be included in the
managed care program. The following individuals cannot
enroll in Diamond State Health Plan or Diamond State
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
534 FINAL REGULATIONS
Partners:
a. Individuals entitled to or eligible to enroll in
Medicare
b. Individuals residing in a nursing facility or
intermediate care facility for the mentally retarded (ICF/MR)
c. individuals covered under the home and community
based waivers
d. non lawful and non qualified non citizens (aliens)
e. individuals who have CHAMPUS Military Health
Insurance for Active Duty, Retired Military, and their
dependents
14920.1 Retroactive Coverage Limitations
Effective January 1, 1996, Retroactive Medicaid
coverage is NOT available to any individual who, in the
month of application, is eligible for enrollment under the
Diamond State Health Plan or Diamond State Partners.
Individuals who are excluded from the Diamond State
Health Plan or Diamond State Partners may be found eligible
for retroactive Medicaid coverage. These individuals
include:
[a)] those entitled to or eligible to enroll in Medicare,
[b)] those receiving long term care services (nursing
facility and the home and community based waivers),
[c)] those living out of state but considered Delaware
residents, such as a child placed out of state by DSCYF, and
[d)] individuals who have coverage under CHAMPUS
Military Health Insurance for Active Duty, Retired Military,
and their dependents.
14920.2 Retroactive Coverage Of Unpaid Bills
Individuals or families who apply for MAO (Medical
Assistance Only), TANF/AFDC, GA, or SSI and who are
excluded from the Diamond State Health Plan or Diamond
State Partners may be eligible for retroactive Medicaid
coverage of any unpaid medical bills incurred in any of the
three months prior to the month in which they applied.
However, certain requirements must be met in order for
these bills to be paid under Medicaid.
14920.3 Retroactive Coverage Time Limits
There is no time limitation on requests for retroactive
coverage. They may be processed at any time. Individuals
who are eligible to enroll in Diamond State Health Plan or
Diamond State Partners in the month of application, will
never be eligible for the 3 month retroactive time period
prior to that application.
14920.5 Retroactive Eligibility Determination
If the client is potentially eligible for or enrolled in the
Diamond State Health Plan or Diamond State Partners, the
worker will not do an eligibility determination.
14920.6 Retroactive Eligibility For Newborns
A baby born to a woman eligible for and receiving
Medicaid on the date of the child's birth is deemed to have
filed an application. Also, a mother (who is excluded from
Diamond State Health Plan or Diamond State Partners) can
apply after a child is born and we will determine three month
retroactive coverage. If the mother is determined
retroactively eligible in a month prior to the birth (still
pregnant), or in the month of birth, the infant is deemed
eligible at birth and remains eligible for 1 year provided:
• the child lives continuously in the mother's household;
and
• if the child was born on or after January 1, 1991, the
mother remains eligible for Medicaid or would
have remained eligible if she were still pregnant.
NOTE: Remember that retroactive coverage is only
available to individuals excluded from managed care. A
woman who is eligible for enrollment in the Diamond State
Health Plan or Diamond State Partners cannot apply after the
month of birth and be determined retroactively eligible. In
this case, there is no deemed newborn eligibility and a
separate determination of eligibility must be made for the
baby.
15160.1 Eligibility Determination
Eligibility will be determined using Medicaid under
Section 1931 technical and financial criteria. There is no
medical eligibility criterion. (See DSSM 15120)
If the applicant is eligible, the Medicaid may be opened
retroactive to the date of admission to the hospital. In no
case can coverage be effective more than 3 months prior to
the application date.
EXCEPTION: There is no 3 month retroactive
coverage from the application filing date, if in the month of
application, the individual is eligible for enrollment in the
Diamond State Health Plan or Diamond State Partners.
15503 Screening Requirement
The woman must have been screened for breast or
cervical cancer under the CDC Breast and Cervical Cancer
Early Detection Program established under Title XV of the
Public Health Service Act and found to need treatment for
either breast or cervical cancer (including a pre-cancerous
condition).
A woman is considered to have met the screening
requirement if she comes under any of the following three
categories:
1. CDC Title XV funds paid for all or part of the costs
of her screening services.
2. The woman is screened under a state Breast and
Cervical Cancer Early Detection Program which her
particular clinical service has not be paid for by CDC Title
XV funds, but the service was rendered by a provider and/or
an entity funded at least in part by CDC Title XV funds; the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 535
service was within the scope of the grant, sub-grant or
contract under that State program; and the State CDC Title
XV grantee has elected to include such screening activities
by that provider as screening activities pursuant to CDC
Title XV.
3. The woman is screened by any other provider and/or
entity and the state CDC Title XV grantee has elected to
include screening activities by that provider as screening
activities pursuant to CDC Title XV.
15505 Uninsured Requirement
The woman must be uninsured. The woman is not eligible if
she has:
(a) Medicaid or is eligible under any of the Mandatory
Categorically Needy coverage groups. The mandatory
groups include Section 1931, Transitional or Prospective,
IV-E Foster Care, IV-E Adoption Assistance, Low Income
Pregnant Woman or Child, SSI, or Deemed SSI.
(b) Medicare
(c) Comprehensive health insurance
(d) CHAMPUS Military Health Insurance for Active
Duty, Retired Military, and their dependents
16110 Adult Expansion Population
Section 1902(a)(10)(A)(i) of the Social Security Act
requires states to provide medical assistance to certain
mandatory categories of individuals and allows states to
cover optional categories. On May 17, 1995, HCFA
approved a Section 1115 Demonstration Project, entitled
Diamond State Health Plan. This demonstration waiver
extends Medicaid coverage to uninsured individuals age 19
or over with income at or below 100% of the FPL who are
not categorically eligible. Individuals who receive long term
care services (nursing facility and home and community
based waivers), who have comprehensive health insurance
as defined in this section, who are entitled to or eligible to
enroll in Medicare, or who have coverage through
CHAMPUS Military Health Insurance for Active Duty,
Retired Military, and their dependents are excluded from this
category of assistance created under the demonstration
waiver. Medicaid coverage for this new group is effective
March 1, 1996. Adults are not eligible for Medicaid benefits
until the first of the month in which they are enrolled in a
Managed Care Organization (MCO). (See DSSM 16220.5)
Enrollment in a MCO is a technical eligibility requirement
for these adults under the demonstration waiver. Adults will
not receive Medicaid services until they are enrolled in a
MCO.
16210 Limitations on Retroactive Coverage
Retroactive Medicaid eligibility is discussed in the
common eligibility section of the Medical Assistance
Manual. The demonstration waiver eliminates prior quarter
eligibility. Retroactive Medicaid coverage is NOT available
to any individual who, in the month of application, is eligible
for enrollment under the Diamond State Health Plan or
Diamond State Partners.
Certain individuals, who are excluded from the
Diamond State Health Plan or Diamond State Partners, may
be found eligible for retroactive Medicaid. Individuals who
may be found eligible for retroactive Medicaid are:
• those who are entitled to or eligible to enroll in
Medicare,
• those receiving long term care services (nursing
facility and the home and community based waivers),
• those living out-of-state but considered Delaware
residents, such as a child placed out-of-state by
DSCYF, and
• individuals who have coverage under CHAMPUS
Military Health Insurance for Active Duty, Retired
Military, and their dependents.
16220.4 Uninsured Requirement for Adult Expansion
Population
This is a separate technical eligibility requirement for
the noncategorically related adults age 19 or over, including
those who receive General Assistance. The individual must
be uninsured. An uninsured individual is defined as an
individual who does not have Medicare, CHAMPUS
Military Health Insurance for Active Duty, Retired Military,
and their dependents, or other comprehensive health
insurance. (See DSSM 16220.4.1) An adult who is entitled
to or eligible to enroll in Medicare or who has CHAMPUS
Military Health Insurance for Active Duty, Retired Military,
and their dependents or who has any comprehensive health
insurance, cannot be eligible for Medicaid as a non
categorical adult under the demonstration waiver. The Third
Party Liability Unit will determine if an individual has
comprehensive health insurance.
16220.5 Enrollment in Managed Care - Special
Requirement for Adult Expansion Population
Enrollment in a Diamond State Health Plan or Diamond
State Partners MCO is a separate technical eligibility
requirement for the non categorically related adults
including adults who are receiving General Assistance. The
adult must join a MCO before the 20th day of the approval
month in order for Medicaid coverage to begin. the first day
of the next month. If the adult joins a MCO after the 20th
day of the approval month, Medicaid coverage will start the
second month following the approval month. The approval
month is the month in which the notice to approve Medicaid
is sent to the applicant. The adult, if otherwise eligible,
cannot receive Medicaid coverage until he or she is enrolled
in a Diamond State Health Plan or Diamond State Partners
MCO.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
536 FINAL REGULATIONS
16310.3 Adults
Non categorically related adults will remain eligible as
long as the family income is at or below 100% FPL. These
adults may lose Medicaid eligibility due to disenrollment
from a managed care organization because of:
• non-compliance,
• threatening or abusive behavior, or
• falsification of application or enrollment material
determined after a fair hearing on the issue.
If the adult becomes entitled to or eligible to enroll in
Medicare or acquires CHAMPUS Military Health Insurance
for Active Duty, Retired Military, and their dependents or
comprehensive health insurance, redetermine eligibility
promptly. If the adult in not eligible for Medicaid under
another eligibility group or if benefits are reduced (e.g. to
QMB), terminate or reduce benefits after giving at least 10
days advance notice.
16500.2 Procedures for Determining Eligibility
This program is an extension of benefits like the
Transitional Medicaid program. A separate application is
not required. When a female of childbearing age loses
Medicaid eligibility, DSS staff will contact the woman to see
if she wants to receive Family Planning services. The
woman’s response will be documented. The woman may
request Family Planning services anytime during the 24
months after the Medicaid case is closed. These recipients
will receive a Medicaid card that indicates they are eligible
for Family Planning Package including Family Planning and
Related Services.
Women eligible under this program are excluded from
enrollment into the Diamond State Health Plan or Diamond
State Partners. When the Medicaid case is closed, system
processing will automatically disenroll women from
managed care using the Medicaid closing effective date.
Family planning and related services will be paid on a feefor-
service basis.
18200.2 Uninsured Requirement
The DHCP is limited to uninsured, low-income
children. The following children are not eligible for DHCP:
a. Children who are eligible for Medicaid.
b. Children who have Medicare
c. Children who, at the time of application, have
insurance coverage that meets the definition of
comprehensive health insurance.
d. Children who have had comprehensive health
insurance (other than Medicaid) within the six months
preceding the month of application unless good cause exists
for the loss of health insurance. The month of application is
the month in which a signed application is received by DSS.
e. Children who are eligible for or who have access to
coverage under a state health benefits plan on the basis of a
family member’s employment with a public agency in the
state.
f. Children who have Military Health Insurance for
Active Duty, Retired Military, and their dependents.
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF FISH & WILDLIFE
Statutory Authority: 7 Delaware Code,
Section 103(a)(1) and (b),
(7 Del.C. 103(a)(1) and (b))
Secretary’s Order No.: 2002-F-0050
Amendments to Wildlife and Non-Tidal Fishing
Regulations
I. Background
The Department of Natural Resources and
Environmental Control, Division of Fish and Wildlife
("Department") initiated proceedings to amend the Wildlife
and Non-Tidal Fishing Regulations. The Department’s
proceedings were initiated pursuant to 29 Del.C. §10114 and
its authority as prescribed by 7 Del.C. §§103 and 601.
On August 1, 2002, the Department published in the
Delaware Register of Regulations its notice of proposed
regulation changes pursuant to 29 Del. § 10115. The notice
requested that written comments from the public concerning
the proposed amendments be delivered to the Department by
August 31, 2002 or at the public hearing on August 27, 2002.
After the close of the public comment period, the
Hearing Officer prepared his report and recommendations in
the form of a memorandum to the Secretary dated September
3, 2002 and that memorandum is expressly incorporated
herein by reference.
Findings and Conclusions
1. On January 29, 2002, February 26, 2002, March 26,
2002 and April 30, 2002, presentations were made
to the Council on Fish and Wildlife on various
aspects of these regulatory changes.
2. Proper notice of the public hearing held on August
29, 2002 was provided as required by law.
3. All of the findings and conclusions contained in the
Hearing Officer’s Report, dated September 3, 2002
are expressly incorporated herein.
4. The proposed amendments include modifications
from those published in the Delaware Register of
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 537
Regulations on August 1, 2002, based on comments
received during the public notice period.
5. The changes made to the proposal after it was published
in the Delaware Register of Regulations do
not constitute substantive changes with respect to
republishing this regulatory proposal.
6. The proposed amendments should be made in the
best interest of the general public of the State of
Delaware.
III. Order
In view of the findings and conclusions, it is hereby
ordered that the proposed amendments to the Wildlife and
Non-Tidal Fishing Regulations be adopted in the manner and
form provided for by law. This order shall become effective
October 10, 2002.
Nicholas A. DiPasquale, Secretary
WR-2. Method Of Take
Section 1. General.
Unless otherwise provided by law or regulation of
the Department, it shall be unlawful to hunt any protected
wildlife with any weapon or firearm other than a longbow or
shotgun (10 gauge or smaller), except that:
(1) A crossbow may be used in lieu of a
shotgun to hunt deer during that part of the November
shotgun season that runs from Monday through Saturday of
each year and in any shotgun or muzzle loader deer season
open in December or January;
(2) A muzzle-loading rifle with a barrel length
of at least twenty inches may be used to hunt deer during the
primitive firearms season;
(3) A .22 caliber rimfire pistol may be used to
hunt raccoons and opossums and to take wildlife lawfully
confined in a trap;
(4) A hook, spear or gig may be used to take
frogs; and
(5) A spear, gig, trap or fyke net may be used
to take snapping turtles.
(6) [A single shot] an antique or authentic
reproduction black powder Sharps rifle [of 45 to 60 caliber]
shall be lawful for use during shotgun deer seasons using
paper patched bullets.
WR-3. Federal Laws And Regulations Adopted
Section 1. Federal Laws.
It shall be unlawful for any person to hunt, buy, sell
or possess any protected wildlife or part thereof, except in
such manner and numbers as may be prescribed by the
following federal laws and regulations promulgated
thereunder: Airborne Hunting Act (16 USC § 742j-l et seq.),
Eagle Act (16 USC § 668 et seq.), Endangered Species Act
(16 USC 1531 et seq.), Lacey Act (16 USC § 3371 et seq.),
Marine Mammal Protection Act (16 USC § 1361 et seq.),
and the Migratory Bird Treaty Act (16 USC § 703 et seq.).
Notwithstanding the foregoing, the federal laws and
regulations shall be superseded by more stringent restrictions
prescribed by State law or regulation of the Department.
Section 2. Sea Ducks.
Scoters, eiders and old squaw ducks may be taken
during their special season not less than 800 yards seaward
from the Delaware Bay shore beginning at an east/west line
between Port Mahon and the Elbow Cross Navigation Light
south to the Atlantic Ocean or in the Atlantic Ocean.
Section 3. Non-toxic Shot.
(a) Required Usage. – Non-toxic shot, as defined
by federal regulations, shall be required for waterfowl
hunting in Delaware. It shall be unlawful for any person to
possess shells loaded with lead shot while waterfowl
hunting.
(b) Maximum Shot Size. – It shall be unlawful for
any person to hunt, except for deer, in Delaware with any
size non-toxic shot (as defined by federal regulations)
pellet(s) larger than size T (.20 inches in diameter).
Section 4. Special Mallard Release Areas.
The Division may issue permits to allow the taking
of captive-reared mallards during the established waterfowl
season under applicable federal regulations. Permits shall
only be issued to persons who: control at least 100 acres of
land on which there is suitable waterfowl habitat; agree to
follow a management plan and federal regulations; and
maintain a log of guests and birds harvested. Failure to
follow the management plan or a violation of State or federal
laws may result in the revocation of a Special Mallard
Release Area Permit. Waterfowl may only be hunted on
Special Mallard Release Areas from one-half hour after
sunrise to one hour before sunset.
Section 5. Mute Swans
Mute swans shall be considered an exotic, invasive
species that is not subject to state protection.
WR-4. Seasons
Section 4. Beaver.
(a) Unless otherwise provided by law or regulation
of the Department, it shall be unlawful for any person to hunt
or trap beaver during any period of the year, however, from
December 1 through March 20, landowners (or their agents)
may take up to eight beavers from their property without a
permit, provided [the beavers are causing crop or
property damage.]
(1) Beavers are damaging crops or other
property;
(2) The property damage is certified by the
landowner; and
(3) The number of beavers taken is reported to
the Division by April 1.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
538 FINAL REGULATIONS
[beavers from their property without a
permit, provided the beavers are causing crop or
property damage.]
(b) Beaver hides and the meat of lawfully taken
beaver harvested anywhere within or outside of Delaware
may be sold.
WR-7. Deer
Section 1. Limit.
(a) Unless otherwise provided by law or regulation
of the Department, it shall be unlawful for any person to:
(1) Kill or take or attempt to kill or take more
than two antlerless deer in any license year;
(2) Kill or take two deer in any license year
without at least one of the two deer being an antlerless deer;
or
(3) Possess or transport any deer that was
unlawfully killed.
(4) Kill any antlered deer without first
purchasing a Hunter’s Choice tag [for $10], except that
persons exempt from purchasing a hunting license shall be
entitled to take one Hunter’s Choice deer at no cost.
(b) For the purposes of this section, a person
"driving deer" and not in possession of any weapon or
firearm shall not be treated as if they are hunting deer,
provided they are assisting lawful hunters.
(c) It shall be unlawful for any person to purchase,
sell, expose for sale, transport or possess with the intent to
sell, any deer or any part of such deer at any time, except that
hides from deer lawfully killed and checked may be sold
when tagged with a non-transferable tag issued by the
Division. Said tag must remain attached to the hide until it
leaves the State or is commercially processed into leather.
This subsection shall not apply to venison approved for sale
by the United States Department of Agriculture and
imported into Delaware.
(d) Notwithstanding subsection (a) of this section,
a person may purchase an Antlerless Deer Tag for $10 to kill
or take an additional antlerless deer during the open season,
provided:
(1) The tag is valid for the season in which it
is used; and
(2) The tag is valid in the deer management
zone from which the deer is taken.
(e) Notwithstanding subsection (a) of this section,
a person may purchase one Quality Buck Tag for $10 to take
a second antlered deer with a minimum outside antler spread
of fifteen inches, provided the tag is valid for the season in
which it is used. use one Quality Buck tag to take an
antlered deer with a minimum antler spread of fifteen inches,
provided the tag is valid for the season in which it is used.
Hunters exempt from the requirement to purchase a hunting
license must purchase a Quality Buck tag in order to take a
second antlered deer in any one license year.
Section 2. Tagging and Designated Checking
Stations.
(a) Attaching Tags. – Each licensed person who
hunts and kills a deer shall, immediately after the killing and
before removing the deer from the location of the killing,
attach an approved tag to the deer. An approved tag shall
mean an Anterless Deer Tag, a Quality Buck Tag, a Hunter’s
Choice Tag, a Deer Damage Tag, a Sportsmen Against
Hunger Tag or a tag detached from a Delaware hunting
license. Any unlicensed person not required to secure a
license shall make and attach a tag to the deer that contains
the person’s name, address and reason for not having a valid
Delaware hunting license.
(b) Retention of Tag. – The tag required by
subsection (a) of this section shall remain attached to the
deer until the deer is presented to an official checking station
for examination and tagging or registered by phone [or over
the internet], as prescribed by subsection (c) of this section.
(c) Checking Stations. – Each person who hunts
and kills a deer shall, within 24 hours of killing said deer,
present the deer to a checking station designated by the
Division or to an authorized employee of the Division or
register the deer by phone. Hunters may also check deer by
phone or over the internet through systems authorized by the
Division.
(d) Dressing. – It shall be unlawful for any person
to remove from any deer any part thereof, except those
internal organs known as the viscera, or cut the meat thereof
into parts, until such deer has been examined by an
authorized employee of the Division or a checking station, as
prescribed by subsection (c) of this section.
WR-14. Falconry
Section 1. Federal Regulations Adopted.
It shall be unlawful for any person to practice the
sport of falconry, except in such a manner as prescribed by
regulations promulgated under provisions of 50 CFR (Code
of Federal Regulations) §§ 21.28, 21.29 and 21.30. Such
regulations are hereby made part of the regulations of the
Department as prescribed in § 725 of Title 7.
Notwithstanding the foregoing, the federal regulations
governing falconry shall be superseded by more stringent
restrictions prescribed by law or regulation of the
Department.
Section 2. Permits.
(a) Residents wishing to practice falconry shall
apply to the Division for a falconry permit. To be issued a
falconry permit, the person shall successfully pass a written
test and have their facilities and equipment inspected as
prescribed by the federal regulations.
(b) Nonresidents wishing to practice falconry shall
apply to the Division for a falconry permit. To be issued a
falconry permit, the person must purchase a nonresident
hunting license and be properly permitted to practice
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
FINAL REGULATIONS 539
falconry in the state in which he or she resides.
(c) Falconry permits shall be effective, unless
revoked, for a period of up to three years and coincide with
the license period for the hunting license. The Division shall
participate in any joint state/federal permit system available.
(d) The issuance of Apprentice Class permits shall
be limited to persons 15 years of age or older.
WR-15. Collection Or Sale Of Nongame Wildlife
Section 1. Commercial Collection.
It shall be unlawful for any person to collect or
possess any North American nongame wildlife species or
any part thereof for commercial purposes without a permit
from the Director. The permit shall limit the terms and
conditions for collecting or possessing said wildlife within
the State. Endangered species or a species classified as a
threatened species in accordance with the Endangered
Species Act of 1973, as amended may not be collected,
possessed or sold without appropriate federal/state permits.
Species that are exotic to Delaware and regulated by the
Delaware Department of Agriculture shall be exempt from
the provisions of this section.
Section 2. Collection and Possession of Reptiles and
Amphibians.
(a) Unless otherwise provided by law or regulation
of the Department, it shall be unlawful for any person to
remove from the wild or possess any reptile or amphibian,
their eggs or parts without a permit from the Director.
(b) For noncommercial purposes, one individual of
any single species of reptile or amphibian, other than State
Heritage Program ranked S1, S2, S3, SX or SH, may be
collected and possessed without a permit.
(c) Federally listed threatened and endangered
species may not be collected or possessed without federal
permits.
(d) It shall be unlawful to remove reptiles or
amphibians from the wild and later release said animals back
to the wild if they have been held in captivity for 30 days
more.
Section 3. Captive Breeding.
(a) It shall be unlawful for any person to breed in
captivity any North American nongame wildlife species
without a nongame breeders permit from the Director,
except for species that are regulated by the Delaware
Department of Agriculture. Said permit shall limit the terms
and conditions for captive breeding of said wildlife.
(b) It shall be unlawful for any person to release
captive-bred species into the wild. A signed bill of sale shall
accompany any captive-bred species that are sold. Federally
listed threatened and endangered species may not be
collected or possessed without the appropriate federal
permits.
(c) This section shall not apply to accredited zoos
or to raptors regulated by federal and State falconry or raptor
propagation regulations.
Section 4. Sale or Possession of CITES Listed
Species.
It shall be unlawful for any person to sell or possess
bear gall bladder, or other viscera from any species of bear,
or any part of other species listed as prohibited by the
Convention on International Trade in Endangered Species
(CITES). The possession of any part of a bear must be in
conformance with CITES.
Section 5. Take of Turtles
Turtles can only be taken by hand, turtle trap or
dowel-and-line. Turtle traps can have only one throat or
funneling device. Turtle traps must have an escape hole
provided below the water surface and the hole must measure
a minimum of seven and one-half inches in all directions.
Hoop-type turtle traps must have the area from the last hoop
to the tail-line covered by nylon web having a mesh size of
three and one half inches square measure or greater. All
turtle traps must be lifted and emptied of catch at least once
every 48 hours.
WR-16. Endangered Species
Section 2. Designation of Species by Division
(a) Pursuant to § 601 of Title 7, the Division may
designate species of fish and wildlife that are seriously
threatened with extinction as endangered species. The
Division will review the state list of endangered species and
add species suggested by the public that have sufficient
documentation for listing.
WR-17. Species Of Special Concern
Section 1. List of Species
The following species or groups of species shall be
considered Species of Special Concern for the purpose of
qualifying for federal funds for wildlife restoration:
Endangered species as designated by state or federal
regulations; species designated by WR-16, Section 2,
colonial nesting birds; shorebirds; wading birds; neotropical
migrant birds; beach nesting birds; bald and golden eagles;
peregrine falcons; [other raptors, grassland nesting birds;
birds of early successional habitat; bobwhite quail; wild
turkey; freshwater mussels; bats; nutria; and] overly
abundant species [such as including] deer, beavers,
southern nesting Canada geese, and red fox.[, bobwhite
quail, wild turkey; freshwater mussels and bats.]
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
540 GOVERNOR’S APPOINTMENTS
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Advisory Council of Substance Abuse
and Mental Health
Board of Accountancy
Board of Dental Examiners
Board of Directors of the Riverfront
Development Corporation
Board of Geologists
Board of Landscape Architects
Board of Podiatry Examiners
Child Death Review Commission
Child Placement Review Board-Kent
Child Placement Review Board-New Castle
Coucil on Housing
Council on Transportation
Delaware Board of Examiners for Nursing
Home Administrators
Delaware College Investment Plan Board
for Sussex County
Delaware State University Board of Trustees
Dental Hygiene Advisory Committee
Ms. Penny D. Chelucci 8/26/05
Ms. Norma L. Rohleder 8/26/05
Dr. Wanda Gardiner Smith, D.D.S. 8/29/05
Mr. Philip G. Heasley Pleasure of the
Governor
Mr. Theodore W. Ressler 7/29/05
Mr. Eric J. Trinkle 7/29/05
Mr. Paul DeVilbiss 7/29/05
Edwin M. Mow, DPM 7/29/05
Ms. Kathy A. Janvier 9/5/05
Ms. Lani L. Nelson-Zlupko 9/5/05
Mr. Michael J. Szczerba 9/5/05
Ms. Gail L. Allen 7/29/05
Ms. Mary Austria 7/29/05
Ms. Evelyn Figueroa 7/29/05
Ms. Dana S. Stonesifer 7/29/05
Ms. Constance P. Cecil 7/29/05
Ms. Mary R. Morgan 7/29/05
Mr. Charles E. Brogdon 7/29/05
Ms. Natalie M. Crawford 7/29/05
Ms. Michele C. Gott 7/29/05
Ms. Kay D. Haubois 7/29/05
Ms. Mary Jane Johnson 7/29/05
Ms Ann Southmayd 7/29/05
Ms. Helen Willauer 7/29/05
Ms. Constance C. McCarthy 9/4/05
Mr. Harry H. Isaacs, Jr. 7/17/05
Ms. Patricia McLaughlin 4/22/05
Mr. A. Glenn Barlow, Jr. 8/19/05
Mr. Norman M. Oliver 8/19/08
Ms. Elizabeth Garey 7/29/05
Ms. Fay S. Rust 7/29/05
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GOVERNOR’S APPOINTMENTS 541
BOARD/COMMISSION TERM OF
OFFICE APPOINTEE OFFICE
Greater Wilmington Convention and Visitors Bureau
Riverfront Development Corporation of Delaware
Employees’ Charitable Campaign Steering
Committee
Statewide Independent Living Council
Sussex County Vocational-Technical School
Board of Education
Technology Investment Council
Tourism Advisory Board
Mr. Stephen T. Bruni 9/4/05
The Honorable Joseph G. DiPinto 9/4/05
Mr. Philip G. Heasley Pleasure of the
Governor
Ms. Sheila J. Stevens Pleasure of the
Governor
Mr. Peter K. Mitchell 8/26/05
Ms. Jamie L. Wolfe 8/26/05
Mr. John E. Oliver 8/20/09
Ms. Susan Foster Pleasure of the
Governor
Mr. Justin A. Kershaw, III Pleasure of the
Governor
The Honorable Jack A. Markell Pleasure of the
Governor
Mr. Kristofer A. Younger Pleasure of the
Governor
Ms. Norma Lee Derrickson 8/20/05
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
542 GENERAL NOTICES
DEPARTMENT OF EDUCATION
IMPLEMENTING ORDER
STATE BOARD OF EDUCATION PROCEDURES
MANUAL
Background and Context of the Regulation
The State Board of Education’s Procedures Manual
includes descriptions of the Board’s organization and
operations, its meeting procedures and its rules of hearing
practice, among other items.
The State Board concludes it is necessary to amend the
Procedures Manual to: (1) clarify how groups or individuals
may address the State Board on issues on the agenda; (2)
eliminate a duplicate listing to the "Order of Business" for
formal public comment; (3) change the normal starting time
of regular State Board meetings; (4) correct and update
references to the Delaware Code; and (5) change references
to the Delaware Secondary School Athletic Association to
the Delaware Interscholastic Athletic Association within the
rules of hearing practice.
These changes are exempted from the procedural
requirements of the Administrative Procedures Act pursuant
to 29 Del.C. 10113(b)(1), (2), (4) and (5). As a result, the
State Board may adopt these changes informally.
ORDER ADOPTING REGULATIONS
The State Board of Education concludes that it is
appropriate to amend the Procedures Manual as described
above. The amended regulations are attached as Exhibit "A"
and are hereby adopted by the State Board of Education as
its Procedures Manual, effective immediately.
IT IS SO ORDERED this 19th day of September 2002.
STATE BOARD OF EDUCATION
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert J. Gilsdorf
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
State Board of Education
Procedures Manual
September 1998
(Revised: 2001 and 2002)
Legal Basis and Related Issues
Statutory Basis
The State Board exists pursuant to 14 Delaware Code,
§104(a), which states the following:
(a) The State Board of Education shall be
composed of 7 members who shall be citizens
of the State and shall be appointed by the
Governor and confirmed by the Senate. The
Governor shall name the President of the Board
who shall serve at the Governor’s pleasure.
Each of the remaining members of the Board
shall be appointed to serve for 6 years and until
his or her successor qualifies.
Board Structure
Membership
In accordance with 14 Delaware Code, §104(a),
the State Board is composed of 7 members.
Appointment
In accordance with 14 Delaware Code, §104(a),
the State Board members are appointed by the Governor and
confirmed by the Senate.
Qualifications
The qualifications for membership on the State
Board of Education are specified in 14 Delaware Code,
§104(d), which states the following:
(d) The members of the Board shall be
appointed solely because of their character and
fitness subject to the following qualifications:
At least 2 members of the Board shall have had
prior experience on a local board of education;
no more than 4 members of the Board shall
belong to the same political party; no person
shall be eligible to appointment who has not
been for at least 5 years immediately preceding
appointment a resident of this state; and no
person shall be appointed to the Board who is
in any way subject to its authority.
Any member of the Board shall be eligible
for reappointment unless otherwise
disqualified by this title. In constituting the
Board, the President shall be appointed from
the State at large, but the appointments of the
remaining 6 members shall be made so that
there shall be on the Board at least 1 resident of
the City of Wilmington, 3 residents from New
Castle County outside the City of Wilmington,
1 from Kent County and 1 from Sussex
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GENERAL NOTICES 543
County.
Terms
The President of the Board serves at the pleasure of
the Governor 14 Del.C. §104(a). The terms for the
remaining 6 members are "6 years and until his or her
successor qualifies." 14 Del.C. §104(a). However, §104(f)
provides that the "Governor may appoint members for
confirmation by the Senate for terms shorter than 6 years
where that is necessary to ensure that Board members’ terms
expire on a rotating annual basis."
Compensation
The compensation of State Board members is
specified in 14 Delaware Code, §104(h), which states the
following:
(h) The members of the Board shall receive
$100 for each day’s attendance at the meetings
of the Board not to exceed 24 days’ attendance
in any 1 calendar year; and they shall be
reimbursed for the actual travel and other
necessary expenses incurred in attending
meetings and transacting the business of the
Board.
Vacancies
"Vacancies on the Board for any cause shall be
filled by the Governor for the unexpired term and until a
successor shall qualify" 14 Del.C. §104(e).
Powers, Duties and Responsibilities
The powers, duties, and responsibilities of the State
Board of Education are delineated primarily in Delaware
Code, Title 14. The general powers are specified in 14
Delaware Code, §104(b), which follows. However, the
specific powers, duties, and responsibilities, as cited in the
Code, are detailed more fully in Appendix A, where the
specific citations and a brief paraphrase of the statutes are
given.
(b) The State Board of Education shall have
powers, duties, and responsibilities as specified
in this title. Included among the powers, duties
and responsibilities are those specified in this
subsection. The State Board of Education
shall:
(1) Provide the Secretary of Education
with advice and guidance with respect to the
development of policy in those areas of
education policy where rule- and regulationmaking
authority is entrusted jointly to the
Secretary and the State Board. The State
Board shall also provide guidance on new
initiatives, which may from time to time be
proposed by the Secretary. The Secretary shall
consult with the State Board regularly on such
issues to ensure that policy development
benefits from the breadth of viewpoint and the
stability which a citizens’ board can offer and
to ensure that rules and regulations presented to
the State Board for its approval are developed
with input from the State Board. Consistent
with its role in shaping critical educational
policies, the State Board of Education may also
recommend that the Secretary undertake
certain initiatives which the State Board
believes would improve public education in
Delaware;
(2) Provide the Secretary of Education
with advice and guidance on the Department’s
annual operating budget and capital budget
requests;
(3) Provide the Secretary of Education
with guidance in the preparation of the annual
report specified in §124 of this title, including
recommendations for additional legislation and
for changes to existing legislation;
(4) Provide the Secretary of Education
with guidance concerning the implementation
of the student achievement and statewide
assessment program specified in §122(b)(4) of
this title;
(5) Decide, without expense to the parties
concerned, certain types of controversies and
disputes involving the administration of the
public school system. The specific types of
controversies and disputes appropriate for State
Board resolution and the procedures for
conducting hearings shall be established by
rules and regulations pursuant to §121 (12) of
this title;
(6) Fix and establish the boundaries of
school districts, which may be doubtful or in
dispute, or change district boundaries as
provided in §§1025, 1026, and 1027 of this
title;
(7) Decide on all controversies involving
rules and regulations of local boards of
education pursuant to §1058 of this title;
(8) Subpoena witnesses and documents,
administer and examine persons under oath,
and appoint hearing officers as the State Board
finds appropriate to conduct investigations and
hearings pursuant to paragraphs (5), (6), and
(7) of this subsection;
(9) Review decisions of the Secretary of
Education, upon application for review, where
specific provisions of this title provide for such
review. The State Board may reverse the
decision of the Secretary only if it decides,
after consulting with legal counsel to the
Department, that the Secretary’s decision was
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
544 GENERAL NOTICES
contrary to a specific state or federal law or
regulation, was not supported by substantial
evidence, or was arbitrary and capricious. In
such cases, the State Board shall set forth in
writing the legal basis for its conclusion;
(10) Approve such Department rules and
regulations as require State Board approval,
pursuant to specific provisions of this title,
before such regulations are implemented;
(11) Approve rules and regulations
governing institutions of postsecondary
education that offer courses, programs of
courses, or degrees within the State or by
correspondence to residents of the State
pursuant to §§121(16) and/or 122(b)(7).
Conduct of Members
Delaware Code, Title 29, Chapter 58 provides the laws
regulating the conduct of officers and employees of the State
of Delaware. Members of the State Board of Education are
subject to certain of the provisions of that statute in that they
are included in the definition of "state agency" 29 Del.C.
§5804(10) and the definition of "honorary state official" 29
Del.C. §5804(13). For that reason, members of the Board
are encouraged to become familiar with the provisions of
that chapter. The following issues are of particular concern.
Conflicts of Interest
Section 5805 details the State’s conflict of interest
provisions, which apply to members of the State Board of
Education. As applied to State Board that means that a
member may not participate on behalf of the State in the
review or dispositions of any matter pending before the
State in which he or she has a personal or private interest
29 Del.C. §5805(a). There are also restrictions on
representing another’s interest §5805(b); against contracting
with the State for goods or services §58059(c); or for
representing or assisting private enterprise within two years
after appointed service §5805(d). The code of conduct is
further detailed in 29 Delaware Code, §5806.
Financial Disclosure
Subchapter II, Chapter 58, 29 Delaware Code
contains the requirements for financial disclosure of public
officers. Because State Board of Education members are not
included in the definition of "public officer" contained in
§5812, it would appear that members are not required to file
the annual disclosure reports mandated by this statute.
However, nothing would prohibit a member who chose to do
so from voluntarily completing such a report.
Dual Compensation
"There are numerous elected state officials and
other paid appointed officials who are also employed by
state agencies, educational and other institutions, and other
jurisdictions of government within the State" 29 Del.C.
§5821(a). The statute prohibits such individuals from
receiving dual compensation for their time. Thus, State
Board members, who are employed by the agencies and
organizations specified, are encouraged to acquaint
themselves with the specific provisions of this statute.
Organization
Officers
President
The Governor shall name the President of the Board
who shall serve at his/her pleasure Delaware Code, §104(a).
The President is responsible for the integrity of the Board
process. Integrity includes the efficient, orderly deliberation
of Board issues and conduct of Board affairs.
The President has no authority over Department of
Education activities. However, the President does have
authority, subject to any applicable Board policy, to (1) call
special meetings of the Board; (2) represent, in person or
through a designee, Board positions and symbolize the
Board image in public and at ceremonial events; and (3)
decide mechanics of Board procedures. Subject to Board
approval, the President (1) determines Board agendas and
committee charges, and (2) makes Board appointments to
committees. The President shall be an ex officio member of
all committees, and shall have all privileges of membership
but shall not be counted in the committee quorum.
The President shall have the same right to make or
second motions and to vote on pending questions as any
other member of the Board.
The President shall determine the appropriate
action to take in reference to any uncertainty regarding any
expense statement submitted by a member of the State
Board.
The President shall be responsible for initiating the
annual evaluation of the Board’s progress toward achieving
the goals delineated in the five-year plan (See Vision,
Mission, and Goals).
Vice President
The Vice President shall be elected at the annual
meeting and shall serve until the next annual meeting or until
a successor has been named 14 Delaware Code, §105(a).
The Vice President shall assist the President in the duties of
the President’s office, as the President may direct, and shall
preside at meetings and appoint members of committees
during the President’s absence. In the event of the
President’s death, resignation, incapacity, or
disqualification, the Vice President shall act in place of the
President in all respects until the vacancy shall be filled or
the incapacity removed.
Executive Secretary
Pursuant to 14 Delaware Code, §104(c):
The Secretary of Education, in addition to
his or her other duties of office, shall serve as
Executive Secretary of the State Board.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GENERAL NOTICES 545
The Executive Secretary is responsible for keeping
of the minutes and other official records of the State Board,
either in person or by an assistant.
Legal Counsel
Legal counsel to the State Board of Education is
provided by the State Department of Justice and the Attorney
General’s Office in accordance with 29 Delaware Code,
§2504. (In accordance with 29 Delaware Code, §2507, no
agency board, or commission shall employ legal counsel
except with approval of the Attorney General and
Governor.)
Staff Assistance
Section 104(c), 14 Delaware Code, provides in
part, that: "The Department, through the Secretary, shall
provide reasonable staff support to assist the State Board in
performing its duties pursuant to this title …". In addition,
the annual appropriations act provides funding for a single
independent staff person to provide support and policy
advice to the State Board of Education.
Committees
Subcommittees of the Board
The Board may, from time to time, establish
temporary committees to help carry out its responsibilities.
To preserve Board holism, committees will be used
sparingly, only when other methods have been deemed
inadequate or to improve efficiency of operations. Board
committees, whether external or internal, may not speak for
the Board. No more than three Board members may serve
on a Board committee. Board members may express their
interest and willingness to serve on any committee. Subject
to Board approval, the President will identify the charge of
the committee and appoint a committee chair and members
of the committee. It is expected that committees will report
back to the full Board on a regular basis.
Special Board Committees
The Board may, from time to time, create special
committees to advise the Board on specific issues, and shall
vote to do so at a formal meeting of the Board. Such
committees may include membership outside the Board or
Department of Education.
Other Committees
Under Delaware Code, a member of the State
Board must serve on each of the following committees:
• Equalization Committee 14 Del.C. §1707(i)
• Higher Education Commission, Executive Order
#97, 1991
• President of the State Board serves ex-officio on the
Board of Trustees of the University of Delaware 14
Del.C. §5105
Traditionally, Board members also serve on
numerous external boards and committees at both the State
and national level. Examples include the following:
• Delaware School Boards Association Board of
Directors
• Delaware School Boards Association Legislative
Committee
• Education Consortium
• Committees and study groups of the National Association
of State Boards of Education
• Education Task Forces and Committees established
by Executive Orders and Legislation.
Committees Appointed by the Secretary of
Education
In accordance with 14 Delaware Code,
§103(a)(11), the Secretary must consult with the State Board
of Education in the appointment of committees formed to
assist in developing policies or regulations which would
require State Board approval. The Board’s view shall be
expressed in the form of a vote on the proposed committee
membership.
Examples of such committees include the Statewide
Student Assessment Committee and the DOE Strategic
Planning Committee
New State Board Member Orientation
The State Board of Education is responsible for the
orientation of new members to the State Board. A
subcommittee of the Board shall be responsible for planning
the orientation of new members. The Secretary of Education
shall be an ex-officio member of this committee.
Board Member Development
The State Board of Education shall be responsible for its
own development as a Board. This development shall take
place through membership and participation in organizations
such as the National Association of State Boards of
Education, Delaware School Boards Association, the
National School Boards Association, and other activities
such as Board retreats, conferences, conventions,
workshops, or committees.
Self Evaluation
The Board will monitor its own process and
performance to ensure continuity of Board improvements,
integrity of Board actions and progress toward Board goals.
The Board will be accountable to the public for competent,
conscientious, and effective accomplishment of its
obligations as a Board.
As part of the self-evaluation, the Board shall conduct
an annual evaluation in at least the following areas:
• Roles and responsibilities of Board members;
• Board operations; and
• Progress toward achieving Board goals as delineated
in the Board’s five-year plan.
The Board may seek the input from others regarding the
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
546 GENERAL NOTICES
effectiveness or impact of Board initiatives as part of the
evaluation process, and may utilize the services of an
independent consultant in doing so.
Consultants
The Board may, within available financial resources,
hire consultants as needed. The Board shall formally
approve the consultant and fee.
State Board Appropriations
Reimbursement to Board members for the normal
mileage and incidental expenses are paid by the Department
of Education from funds appropriated to the Board and
budgeted for that purpose. Reimbursement requests for
expenses for conferences or meetings outside the state must
be initialed by the Board president. For other expenditures
in excess of $1,000 Board approval is required.
Meetings
Annual Meeting
Pursuant to 14 Delaware Code, §105(a), the annual
meeting of the State Board of Education shall be held in
Dover during the month of July. Election of the Vice
President of the Board shall occur at this meeting.
Regular Meetings
Regular meetings of the State Board of Education are
held once a month in the Cabinet Room of the John G.
Townsend Building, Dover. The meetings are normally
scheduled on the third Thursday of each month beginning at
2:00 1:00 p.m. but may vary as need dictates.
Special Meetings
Special meetings of the State Board of Education may
be held to address emergency issues, conduct hearings,
develop goals, evaluate board operations, or for in depth
study and review of an issue. Special meetings are held at a
time and place agreed upon by the Board.
Executive Sessions
The State Board of Education may meet in executive
session for the reasons specified in 29 Delaware Code,
§10004. The Board must vote in a public meeting to go into
executive session stating the purpose for the executive
session.
Board Meeting Procedures
Public Notice of Meetings
As specified in 29 Delaware Code, §10004(e)(1)
the State Board is required to give public notice of all
meetings, including executive sessions closed to the public,
at least 7 days prior to the meeting. The notice must include
the agenda and the date, time, and place of the meeting. The
notice is posted on the bulletin board outside the Cabinet
Room of the Townsend Building, Dover.
In addition, notices of all regular meetings are
mailed to the district superintendents, state officials, the
media, heads of state education organizations and other
interested parties. Persons and organizations may request
that they be placed on the mailing list by contacting Dani
Moore at the Department of Education. Telephone 302/739-
4603. Fax 302/739-7768. Email: damoore@state.de.us
Agenda Format - Order of Business
The order of business for regular meetings is as
follows:
I. Opening
A. Call to Order
B. Approval of Agenda
C. Approval of Minutes
II. Formal Public Comment
III. State Board Business
A. Reports/Discussions
B. Budget Items
C. Other
IV. Presentations
A. Department of Education
B. Secretary’s Report, Review and
Discussion
C. Other Presentations
V. Action Items
A. Policy, Rules and Regulations
B. Higher Education
C. Charter Schools
D. Other Action Items
E. Appeals and Reviews
VI. Information Items
VII. Formal Public Comment (if needed) -
Agenda Preparation and Dissemination
Items included on the Board’s agenda for regular
meetings are recommended jointly by the Policy Analyst to
the State Board and the Cabinet of the Department of
Education. The final agenda is subject to the approval of the
Board President. Any member of the Board may request that
an item be placed on the agenda.
Agendas with all background materials are
distributed to Board members at least 5 days prior to the
meeting. Board agendas are also distributed to district and
state officials and to others on a request basis.
The State Board Agenda is also posted on the
Department of Education Web Site prior to the meeting at
www.state.doe.de.us.
Rules of Order
The Board uses the rules of parliamentary
procedure to conduct its meetings, but it is not strictly bound
by Robert’s Rules of Order. The general conduct of the
meeting is determined by the Board President with input
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GENERAL NOTICES 547
from other board members and advice from the Board’s legal
counsel.
Quorum
Four (4) members of the State Board must be
present to conduct the business of the Board 14 Delaware
Code, §105(a)).
Voting Method
Votes by the State Board are taken by voice. When
the vote is not a unanimous one, a roll call vote is taken in
alphabetical order with the President voting last. All
questions before the Board must be approved by a majority
(4) of the members of the whole Board.
Minutes
As prescribed in 29 Delaware Code, §10004(f) the
State Board maintains minutes of all its meetings including
executive sessions. The minutes must include the names of
board members present and a record, by individual member,
of all votes taken and action agreed upon. The minutes,
along with the printed agenda and its backup materials, shall
constitute the official record of the Board.
Highlights of the State Board meetings are
available on the Department of Education Website within 10
days of the State Board meeting at www.state.doe.de.us.
Official Board Minutes are posted on the web site within five
days of their approval at the subsequent monthly meeting of
the Board.
Public Participation at Board Meetings
There are three ways that individuals and groups
may address the Board at its regular meetings:
1. An individual or group may request time
on the Board’s agenda to make a formal presentation to the
Board. Such a request should be in writing, and be
submitted to the President of the State Board of Education,
John G. Townsend Building, 401 Federal Street, Suite 2,
P.O. Box 1402, Dover, DE 19903-1402, at least 20 days
prior to the meeting. The decision to include the
presentation will be made by the Board President. (Such
presentations are included in Section IV.C. of the agenda.)
2. Time will be allocated at the beginning of
the meeting (Section II) for individuals or groups to address
the State Board on general issues. In addition, individual
and/or groups may address the State Board on agenda items
at the time that they are before the Board for discussion.
Persons wishing to make comments should sign up on the
appropriate form at least 15 minutes prior to the call to order.
Each group should choose one representative to speak and
comments should be limited to five minutes. Speakers will
be recognized by the Board President in the order their
names appear. If a large number of people sign up to speak,
the Board President may at his/her discretion, limit the
number of persons allowed to speak as well as designate the
appropriate time for comments.
Normally the Board will not respond to questions or
comments at the meeting but will respond in writing to each
person or group. Written responses will not be made to
persons/groups addressing action items on the agenda.
Appeals and Reviews
The State Board of Education has several
responsibilities under the Code to hear appeals and to review
decisions of the Secretary of Education. Those
responsibilities are outlined in 14 Delaware Code,
§104(b)(5), (b)(6), (b)(7), and (b)(9). The types of
controversies and disputes appropriate for Board resolution
and the procedures for conducting such hearings are
contained in Appendix B.
Policy Development
One of the primary functions of the State Board of
Education is to assist the Secretary of Education in the
development of policy. Subsection 104(b)(1), 14 Delaware
Code states:
(1) Provide the Secretary of Education with advice
and guidance with respect to the development
of policy in those areas of education policy
where rule- and regulation-making authority is
entrusted jointly to the Secretary and the State
Board. The State Board shall also provide
guidance on new initiatives, which may from
time to time be proposed by the Secretary. The
Secretary shall consult with the State Board
regularly on such issues to ensure that policy
development benefits from the breadth of
viewpoint and the stability which a citizens’
board can offer and to ensure that rules and
regulations presented to the State Board for its
approval are developed with input from the
State Board. Consistent with its role in shaping
critical educational policies, the State Board of
Education may also recommend that the
Secretary undertake certain initiatives which
the State Board believes would improve public
education in Delaware;
In order to meet that responsibility, the State Board has
set aside time at each regular meeting for discussions of
State Board initiatives (Section III.A.), presentations from
the Department of Education and the Secretary of
Education’s Report (Sections IV A. and B., respectively) and
for Board action on policy, rules, and regulations (Section
V.).
It is the expectation of the Board that the Secretary and
the Department of Education will use those opportunities to
obtain advice and counsel from the board as a whole in
keeping with the spirit of the statute quoted above.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
548 GENERAL NOTICES
Appendix A
The following is a list of the powers, duties, and
responsibilities of the State Board of Education. Each
pertinent section of the Code is paraphrased and annotated.
A general description of the powers, duties, and
responsibilities can also be found in 14 Delaware Code,
§104(b), which is quoted in its entirety in the body of this
document.
Advisory Board to the Secretary
The State Board shall participate in meetings of the
Advisory Board to the Secretary of Education 14 Del.C.
§106.
Alternative Assessments
The State Board of Education must approve any
alternative assessment administered pursuant to §151 (g)(h)
(i) of Title 14 Del.C.
Approval of Charter Schools
The State Board of Education must approve charter
schools authorized by the Department 14 Del.C. §503 and
§511(c). The State Board is also involved in any charter
revocation under 14 Del.C. §515 and/or and §516.
Approval of Rules and Regulations of the
Professional Standards Board
The State Board of Education must approve rules
and regulations promulgated by the Professional Standards
Board before they become effective 14 Del.C.§1203. Such
rules and regulations cover a number of areas including the
following:
1. Qualifications and certification of
educators in the public schools 14 Del.C. §1092,§1201,
§1230,§1260, §1261, §1264(b), and §3310(4).
2. Establishment of a special institute for
teacher certification 14 Del.C. §1250.
3. Regarding alternative routes for teacher
certification 14 Del C. §1230.
4. Regarding the Delaware Performance
Appraisal System II 14 Del.C. §1270.
5. Regarding professional development
activities that qualify for Skills and Knowledge Salary
Supplements 14 Del.C. §1305(l).
6. Regarding activities that qualify for
Additional Responsibility Salary Supplements 14 Del.C.
§1305(m).
Approval of Regulations of the Higher Education
Commission
The State Board of Education must approve rules
and regulations promulgated by the Higher Education
Commission before they become effective 14 Del.C. §104
(b) (12) (13).
Approval of Rules and Regulations
The State Board of Education must approve rules
and regulations promulgated by the Department of
Education before they become effective. Such rules and
regulations cover a number of areas including the following:
1. Issuance of certificates and diplomas for
the public schools 14 Del.C. §122(b)(3).
2. Statewide assessment of student
achievement and the assessment of the educational
attainments of the public school system 14 Del.C.
§122(b)(4) 151(i).
3. Minimum courses of study for all public
elementary schools and public high schools 14 Del.C.
§122(b)(5).
4. Licensing of any institution of higher
education, public or private, which is not incorporated in the
State or is not established according to Delaware law 14 Del
C. §122(b)(7).
5. Instruction in driver education in the
nonpublic high schools 14 Del.C. §122(b)(13).
6. Statewide student testing program 14
Del.C. §151 (i).
7. Excusal of educational hour requirements
specified in 14 Del C. §122 (b)(8) and §1049(1) .
8. Enforcement of school attendance laws 14
Del.C. §122(b)(9) and 10 Del. C. §901(14).
9. Instruction in driver education during
summer months 14 Del.C. §122(b)(13).
10. Conduct of interscholastic athletics 14
Del.C. §122(b)(14).
11. Mandatory drug and alcohol educational
programs 14 Del.C. §122(b)(16).
12. Operation of adult education and family
literacy programs 14 Del.C. §122(b)(17).
13. Conduct of the teacher scholarship loan
program in critical curriculum areas 14 Del.C. §1106 and the
student loan program in critical curriculum areas (14 Del.C.
§1108).
14. Concerning the employment of school
principals 14 Del.C §1307(2).
15. Regarding the employment of school
nurses 14 Del.C. §1310(b).
16. Concerning parent advisory committees, a
peer review committee, a human rights committee, and an
autistic program monitoring board 14 Del.C. §1332(f).
17. Relating to related services for
handicapped students 14 Del.C. §1716A(c) and §1716A(d).
18. Regarding truancy and excused absences
from school 14 Del.C. §2706 2705(b).
19. Governing the design and operation of
school buses 14 Del.C. §2901, and the transportation of
students of nonpublic nonprofit schools 14 Del.C. §2905.
20. Qualifications and certification of
vocational educators in the public schools 14 Del.C
§3310(4).
21. Regarding the creation and operation of
programs designed to serve exceptional students, primarily
the disabled (numerous citations throughout 14 Del.C.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GENERAL NOTICES 549
Chapter 31).
22. Regarding the extent and content of the
instruction in the public schools in the Constitution of the
United States, the Constitution and government of Delaware
and the free enterprise system 14 Del.C. §4103.
23. Regarding interstate agreements on the
qualifications of education personnel 14 Del.C. §8212.
Approval of Shared School Decision Making Grants
The State Board of Education must approve
guidelines for district transition grants for shared decision
making 14 Del.C. §803(b); must approve guidelines for
school transition grants 14 Del.C. §805(b); and must
approve guidelines for school improvement grants 14 Del.C.
§806(a).
Approval of Vocational Centers
The State Board of Education must approve the
creation of vocational-technical centers or schools (14
Del.C. §205).
Committee Appointments
The Secretary of Education must consult with the
State Board of Education in the appointment of committees
formed to assist in developing policies or regulations which
would require State Board approval 14 Del.C. §103(a)(11).
Critical Curriculum Areas
The State Board of Education must approve areas,
which are to be designated as critical curriculum areas 14
Del.C. §1101; approve academic year programs 14 Del.C.
§1104; and approve summer inservice programs 14 Del.C.
§1105.
Deciding Certain Controversies
The State Board of Education shall decide without
expense to the parties concerned certain controversies and
disputes involving the administration of the public school
system 14 Del.C. §121(12) and 14 Del.C. §104(b)(5). Rules
and regulations regarding such hearings by the Board are
contained in Appendix B.
Deciding Controversies Concerning Local Rules and
Regulations
The State Board of Education shall decide
controversies involving rules and regulations of local school
boards 14 Del.C. §1058.
Drug/Alcohol Education Programs
The State Board of Education must approve of
statewide alcohol/substance abuse programs established and
implemented by the Department of Education 14 Del.C.
§4116(a).
Employment of Aides in Autistic Program
The State Board of Education may review decisions
of the Department and Secretary of Education regarding
requests to employ aides in lieu of teachers in the autistic
program 14 Del.C. §1332(e).
Establishment of Programs for the Disabled
The State Board of Education must approve the
establishment of schools, classes or programs for the
disabled 14 Del.C. §203, §1703(d), §1703(k), §1703(l),
§1703(m), §1703(n) and §1721.
Number and Length of School Days
The State Board of Education must approve a
reduction in the number of school days hours and the length
of full workdays for employees of the school system 14
Del.C. 1305(i)(j).
Reorganization of School Districts
The State Board of Education determines and
establishes appropriate reorganized school districts through
consolidation, division, or a combination of the two as well
as establishing tax rates and tax districts for the same. 14
Del.C. §1025, §1026, §1027, §1028, §1065, §1924, and
§1925
Review of Decisions Regarding Exceptional Students
The State Board of Education may review a variety
of decisions made by the Department regarding services to
disabled students (numerous citations in 14 Del.C. Chapter
31.
Qualifications of Food Service Managers
The State Board of Education must approve the
qualifications of food service managers 14 Del.C. §1332
1322(a).
School Profiles
The State Board of Education appoints members of
the School Profiles Advisory Committee, receives
recommendations from the Committee.
Standards for Interpreter/Tutors
The State Board of Education must approve
standards prescribed for interpreter/tutors 14 Del.C.
§1332(a)1331(b).
Statewide Programs for the Disabled
The State Board of Education must approve the
designation of a district to serve as administrative agency for
the deaf-blind program 14 Del.C. §1321(e)(15)a.; to
administer a program for the physically impaired 14 Del.C.
§1321(e)(16); the establishment of intensive learning centers
14 Del.C. §1321(e)(17); and the designation of an
administering district for the autistic program 14 Del.C.
§1332(a).
Use of Cash Options in Lieu of Salary Funds
The State Board of Education may review decisions
of the Department and Secretary of Education regarding
district requests to elect cash options in lieu of receiving
salary funds from the State 14 Del.C. §1321(e)(11),
§1321(e)(12), §1321(e)(15)b., §1321(e)(16), §1332(d), and
§1332(e).
Use of Special Education Funds
The State Board of Education may review decisions
on the use of special education funds that a district seeks to
use in another way if an objection is made to the
Department’s decision 14 Del.C. §1703(o) and §1716A(h).
Vacancies on Local School Boards
The State Board of Education appoints interim
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
550 GENERAL NOTICES
members to a local board of education in the event a majority
or the entire membership vacates the seats at the same time.
The Board may also set the date for a special election to fill
the vacancies 14 Del.C. §1054.
Waiver of a Regulation
The State Board may, within 30 days or at its next
meeting, deny any waiver of a regulation granted by the
Department of Education 14 Del.C. §122(g)(2).
Waiver of Rules Under School Discipline Programs
The Department of Education is authorized to
waive certain rules and regulations in the implementation of
school discipline programs. The State Board of Education
may deny the waiver within a fixed period of time 14 Del.C.
§1606.
Appendix B
HEARING PROCEDURES AND RULES
RULE MAKING HISTORY: Initial adoption date (see
Register of Regulations at www.legis.state.de.us/
onlinepublications :
1.0 Scope and Purpose of Rules
The State Board of Education ("the State Board") is
authorized by several sections of the Education Code (Title
14 of the Delaware Code) to adopt or approve rules and
regulations, resolve disputes, hear appeals, and review
decisions of the Secretary of Education. The State Board is
also governed by the Administrative Procedures Act
(Chapter 101 of Title 29 of the Delaware Code), except
where specifically exempted by other law.
These Hearing Procedures and Rules ("Rules") shall
govern the practice and procedure before the State Board in
hearings, appeals, and regulatory proceedings.
2.0 General Provisions
2.1 These Rules shall be liberally construed to secure a
just, economical, and reasonably expeditious determination
of the issues presented in accordance with the State Board’s
statutory responsibilities and with the Administrative
Procedures Act.
2.2 The State Board may for good cause, and to the
extent consistent with law, waive any of these Rules, either
upon application or upon its own motion.
2.3 Whether a proceeding constitutes an evidentiary
hearing, an appeal or regulatory action shall be decided by
the State Board on the basis of the applicable laws. A
party’s designation of the proceeding shall not be controlling
on the State Board or binding on the party.
2.4 The State Board may appoint a representative to act
as a hearing officer for any proceeding before the State
Board. Except as otherwise specifically provided, the duties
imposed, and the authority provided, to the State Board by
these Rules shall also extend to its hearing officers.
2.5 Notwithstanding any part of these Rules to the
contrary, the State Board, or its counsel, designee or hearing
officer, may conduct pre-hearing conferences and
teleconferences to clarify issues, confer interim relief,
specify procedures, limit the time available to present
evidence and argument, and otherwise expedite the
proceedings.
2.6 The State Board may administer oaths, issue
subpoenas, take testimony, hear proofs and receive exhibits
into evidence at any hearing. Testimony at any hearing shall
be under oath or affirmation.
2.7 The State Board may elect to conduct joint hearings
with the Department of Education and other state and local
agencies. These Rules may be modified as necessary for
joint hearings.
2.8 Any party to a proceeding before the State Board
may be represented by counsel. An attorney representing a
party in a proceeding before the State Board shall notify the
Executive Secretary of the State Board ("Executive
Secretary") of the representation in writing as soon as
practical. Attorneys who are not members of the Delaware
Bar may be permitted to appear pro hac vice before the State
Board in accordance with Rule 72 of the Rules of the
Delaware Supreme Court.
2.9 The State Board may continue, adjourn or postpone
proceedings for good cause at the request of a party or on its
own initiative. Absent a showing of exceptional
circumstances, requests for postponements of any matter
scheduled to be heard by the State Board shall be submitted
to the Executive Secretary in writing at least three (3)
business days before the date scheduled for the proceeding.
The President of the State Board shall then decide whether to
grant or deny the request for postponement. If a hearing
officer has been appointed, the request for postponement
shall be submitted to the hearing officer, who shall then
decide whether to grant or deny the request.
2.10 A copy of any document filed with or
submitted to the State Board or its hearing officer shall be
provided to all other parties to the proceeding, or to their
legal counsel. Where a local or other school board
participates in a proceeding, copies of filed documents shall
be directed to the executive secretary of the board, unless
that board appoints a different representative for such
purpose.
2.11 For purposes of these Rules, unless otherwise
specified "day" shall mean a calendar day. "Business day"
shall mean weekdays Monday through Friday, except when
those days fall on a legal holiday.
3.0 De Novo and Other Evidentiary Hearings
3.1 Section 3.0 governs proceedings where a statute or
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GENERAL NOTICES 551
regulation provides the right to an original or to a de novo
hearing before the State Board to decide a specific
controversy or dispute.
3.2 Petitions for Hearing
3.2.1 A party may initiate a hearing on matters
within the State Board’s jurisdiction by delivering a petition
for hearing to the Executive Secretary. The petition shall be
in writing and shall be signed by the party making the
request (or by the party’s authorized representative). It shall
set forth the grounds for the action in reasonable detail and
shall identify the source of the State Board’s authority to
decide the matter.
3.2.2 The petition for hearing shall be filed
within a reasonable time after the controversy arises, but in
no event shall a petition be filed more than thirty (30) days
after the petitioning party’s receipt of notice that official
action has been taken by an authorized person, organization,
board or agency.
3.2.3 A copy of the petition for hearing shall be
delivered to all other parties to the proceeding at the time it is
sent to the Executive Secretary. A copy of any other paper
or document filed with the State Board or its hearing officer
shall, at the time of filing, also be provided to all other
parties to the proceeding. If a party is represented by legal
counsel, delivery to legal counsel is sufficient.
3.2.4 Upon receipt of an adequately detailed
petition for hearing, the Executive Secretary shall place the
matter on the agenda of the next State Board meeting. At the
next meeting, the State Board will either assign the matter to
a hearing officer or determine a hearing date for the matter.
The parties shall be given at least twenty (20) days notice of
the hearing date.
3.2.5 A party shall be deemed to have consented
to an informal hearing (as that term is used in Section 10123
of the Administrative Procedures Act) unless the party
notifies the Executive Secretary in writing that a formal
public hearing is required. Such notice must be delivered to
the Executive Secretary within three (3) days of the receipt
of the notice scheduling the hearing.
3.3 Record of Prior Proceedings
3.3.1 If proceedings were previously held on the
matters complained of in the petition, the agency which
conducted those proceedings shall file a certified copy of the
record of the proceedings with the Executive Secretary.
3.3.2 The record shall contain any written
decision, a certified copy of any rule or regulation involved,
any minutes of the meeting(s) at which a disputed action was
taken, a certified, verbatim transcript of the proceedings
conducted by the agency below and all exhibits presented to
the agency. The certified transcript shall be prepared at the
direction and expense of the agency below.
3.3.3 The record shall be filed with the
Executive Secretary within ten (10) days of the date the
Executive Secretary notifies the agency that the petition has
been filed, unless directed otherwise. A copy of the record
shall be sent to the petitioner when it is submitted to the
Executive Secretary.
3.4 Record Review
3.4.1 If a hearing was previously held on the
matters complained of in the petition, the parties to the
proceeding before the State Board may agree to submit the
matter to the State Board or its hearing officer on the existing
record without the presentation of additional evidence.
3.4.2 If the parties agree to submit the matter for
decision on the existing record, they shall support their
positions in written statements limited to matters in the
existing record. The parties’ written statements shall be
submitted according to a schedule determined by the State
Board.
3.4.3 If the parties agree to submit the matter for
decision on the existing record, they may nonetheless
request oral argument by notifying the Executive Secretary
in writing at least ten (10) days before the date written
statements are due. Oral argument shall be limited to the
matters raised in the written statements and shall be limited
to fifteen (15) minutes per side with an additional five (5)
minutes for rebuttal.
3.4.4 If the parties agree to submit the matter for
decision on the existing record, the State Board’s decision
shall be based on the existing record, the written statements
and oral argument, if any.
3.5 Evidentiary hearings
3.5.1 Evidentiary hearings will be held when
there has not been a prior hearing, when the parties do not
agree to rest on the existing record, or when the State Board
or its hearing officer otherwise decide to receive additional
evidence.
3.5.2 The hearing will proceed with the
petitioner first presenting its evidence and case. The
responding party may then present its case. The petitioner
will then have an opportunity to present rebuttal evidence.
3.5.3 Opening and closing arguments and post
hearing submissions of briefs or legal memoranda will be
permitted in the discretion of the State Board or hearing
officer.
3.5.4 Any person who testifies as a witness shall
also be subject to cross examination by the other parties to
the proceeding. Any witness is also subject to examination
by the State Board or its hearing officer.
3.6 Evidence
3.6.1 Strict rules of evidence shall not apply.
Evidence having probative value commonly accepted by
reasonably prudent people in the conduct of their affairs may
be admitted into evidence.
3.6.2 The State Board or its hearing officer may
exclude evidence and limit testimony as provided in Section
10125(b) of the Administrative Procedures Act.
3.6.3 Objections to the admission of evidence
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
552 GENERAL NOTICES
shall be brief and shall state the grounds for the objection.
Objections to the form of the question will not be
considered.
3.6.4 Any document introduced into evidence at
the hearing shall be marked by the State Board or the hearing
officer and shall be made a part of the record of the hearing.
The party offering the document into evidence shall provide
a copy of the document to each of the other parties and to
each of the State Board members present for the hearing
unless otherwise directed.
3.6.5 Requests for subpoenas for witnesses or
other sources of evidence shall be delivered to the Executive
Secretary in writing at least fifteen (15) days before the date
of the hearing, unless additional time is allowed for good
cause. The party requesting the subpoena is responsible for
delivering it to the person to whom it is directed.
3.7 Creation of Record before State Board
3.7.1 Any party may request the presence of a
stenographic reporter on notice to the Executive Secretary at
least ten (10) days prior to the date of the hearing or oral
argument. The requesting party shall be liable for the
expense of the reporter and of any transcript the party
requests.
3.7.2 If a stenographic reporter is not present at
the hearing or argument, the State Board shall cause an
electronic recording of the hearing to be made by tape
recorder or other suitable device. Electronic recordings shall
be destroyed unless a written request to preserve it is made to
the Executive Secretary within three months of the final
order issued in the hearing.
3.8 State Board Decision
3.8.1 When the State Board has appointed a
hearing officer, the hearing officer shall submit a proposed
written decision for the consideration of the State Board.
3.8.2 The proposed decision shall comply with
Section 10126(a) of the Administrative Procedures Act. The
proposed decision shall be submitted to the State Board and
the parties within a reasonable time of the conclusion of the
proceedings before the hearing officer.
3.8.3 The parties shall have twenty (20) days
from the date the proposed order is delivered to them to
submit in writing to the State Board and the other party any
exceptions, comments and arguments respecting the
proposed order.
3.8.4 To the extent possible, the State Board
shall consider a matter conducted by a hearing officer at its
next regular meeting following the parties’ submissions, if
any, or the end of the comment period, whichever comes
first.
3.8.5 The State Board shall consider the entire
record of the case and the hearing officer’s proposed
decision and written comments thereto, if any, in reaching its
final decision. The State Board’s decision shall be
incorporated in a final order which shall be signed and
mailed to the parties.
4.0 Appeals
4.1 Section 4.0 governs proceedings where a statute or
regulation provides the right to appeal to the State Board a
decision which resolved a specific controversy or dispute.
These proceedings include, but are not limited to, appeals of
school district decisions involving rules and regulations of
the school board 14 Del.C. §1058 and appeals of decisions
of the Delaware secondary School Athletic Association
(DSSAA) Delaware Interscholastic Athletic Association
(DIAA).
4.2 For purposes of Section 4.0:
4.2.1 "Party" shall mean any person or
organization who participated in the proceedings before the
agency which rendered the decision being appealed.
4.2.2 "Decision" shall mean the official action
taken to resolve the dispute presented below and shall
include the factual findings, the rule involved and the
agency’s conclusion. "Decision" shall not include policy
making or the adoption of rules and regulations of future
applicability.
4.3 For purposes of determining the State Board’s
jurisdiction under Section 1058 of the Education Code,
"controversies involving the rules and regulations of the
school board" shall mean the presentation before the local
school board of a dispute involving the application of rules
and regulations of the local board in a particular factual
context. Certain decisions involving the application of rules
and regulations of the local board may not be appealed to the
State Board, including:
4.3.1 Decisions involving student disciplinary
actions where a student is suspended from school for ten (10)
or fewer days, except where a request to expunge the
disciplinary action from the student’s record has been denied
by the local board.
4.3.2 Personnel actions which are covered under
a collective bargaining agreement or are otherwise subject to
adjudication by the Public Employment Relations Board.
4.3.3 Termination of employees conducted in
accordance with Chapter 14 of the Education Code.
4.3.4 Termination or nonrenewal of public
school administrators and confidential employees, as those
terms are defined in Section 4002 of the Education Code, at
the conclusion of an employment contract.
4.4 Notice of appeal
4.4.1 A party may initiate an appeal by filing a
notice of appeal with the Executive Secretary. The notice
shall be in writing, shall be signed by the party making the
request (or by the party’s authorized representative), and
shall be delivered to the Executive Secretary by registered or
certified mail.
4.4.2 The notice of appeal shall briefly state the
decision from which the appeal is taken, the law, rule or
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GENERAL NOTICES 553
regulation involved in the decision, the names of the parties,
and the grounds for the appeal.
4.4.3 The notice of appeal must be postmarked
within thirty (30) days of the receipt of the written notice of
the decision from which the appeal is taken.
4.4.4 A copy of the notice of appeal shall be sent
to the agency which made the decision at the same time the
original notice of appeal is sent to the Executive Secretary.
A copy of any other paper or document filed with the State
Board shall be provided to all parties to the proceeding at the
time of filing.
4.4.5 Upon receipt of an adequately detailed
notice of appeal involving a student disciplinary decision or
a decision of the Delaware Secondary School Athletic
Association (DSSAA) Delaware Interscholastic Athletic
Association (DIAA), the Executive Secretary shall assign
the matter to a hearing officer from a roster of hearing
officers approved by the State Board. The Executive
Secretary shall provide the notice of appeal and the hearing
officer assignment to the State Board at its next meeting.
4.4.6 Upon receipt of an adequately detailed
notice of appeal involving any matter other than a student
disciplinary decision or a decision of DSSAA DIAA, the
Executive Secretary shall consult with the President of the
State Board to determine whether the matter should be
assigned to a hearing officer or placed on the State Board’s
next meeting agenda. The President shall have the authority
to authorize the Executive Secretary to assign a hearing
officer to the matter from a roster of hearing officers
approved by the State Board. In such case, the Executive
Secretary shall provide the notice of appeal and the hearing
officer assignment to the State Board at its next meeting.
Nothing in this subsection shall prevent the State Board from
later assigning the matter to a hearing officer.
4.5 The record on appeal
4.5.1 Unless instructed otherwise, within ten
(10) days of the receipt of the notice of appeal, the agency
which made the decision under appeal shall forward the
record of the proceedings below to the Executive Secretary.
A copy of the record shall be sent to the party filing the
appeal at the same time.
4.5.2 The record shall include the agency’s
written decision, a certified copy of any rule or regulation
involved, the minutes of the meeting(s) at which the decision
was made, a certified, verbatim transcript of the hearing
conducted by the agency or party below, and all exhibits
presented to the agency. The certified transcript shall be
prepared at the direction and expense of the agency below.
4.5.3 If a certified transcript of the proceedings
below is not or cannot be provided to the State Board, the
Executive Secretary shall remand the case to the agency with
an instruction that the agency hold a new hearing within ten
(10) days.
4.6 Proceedings on appeal
4.6.1 The State Board of Education or its
hearing officer shall establish and notify the parties of the
date when the State Board or its hearing officer will consider
the appeal, hereafter referred to as the consideration date.
The parties shall be given at least twenty (20) days notice of
the consideration date. The parties may agree to shorten or
waive the notice of the consideration date.
4.6.2 Written statements of position and legal
briefs or memoranda, if any, shall be filed no later than (10)
days prior to the consideration date. Failure to file a written
statement by the time specified may result in a postponement
of the consideration date until the statement is filed, or a
consideration of the appeal without the written statement, at
the discretion of the State Board or its hearing officer.
4.6.3 The 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 concerns a legal issue or interpretation.
4.6.4 Oral argument
4.6.4.1 A party may request that oral
argument be heard on the consideration date. A request for
oral argument shall be submitted with the written statement
of appeal. There will be no oral argument unless it is
requested when the written statement of appeal is submitted.
4.6.4.2 Oral argument, if requested, shall be
limited to fifteen (15) minutes per side with five additional
minutes for rebuttal.
4.6.4.3 Any party may request the presence of
a stenographic reporter at oral argument by notifying the
Executive Secretary at least ten (10) days prior to the date of
the argument. The requesting party shall be liable for the
expense of the reporter. If a stenographic reporter is not
present at the argument, the State Board or hearing officer
shall cause an electronic transcript of the hearing to be made
by tape recorder or other suitable device. Electronic
transcripts shall be destroyed unless a written request to
preserve it is made to the Executive Secretary within three
months of the final order issued in the appeal.
4.6.4.4 If the State Board or hearing officer
permits a party to present oral argument on an issue which
was not identified by the party in their written statement,
briefs or legal memoranda, or if in the course of the
argument, the State Board or hearing officer raises an issue
which was not previously raised by either party, the parties
shall have a reasonable opportunity to comment in writing
within five (5) business days of the oral argument.
4.6.4.5 The State Board or its hearing officer
may limit or restrict argument that is irrelevant, insubstantial
or unduly repetitive.
4.7 Standard and Scope of Review
4.7.1 The appellate review of the State Board
shall be limited to the record of the proceedings below.
Neither the State Board nor the hearing officer will consider
testimony or evidence which is not in the record. If the State
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
554 GENERAL NOTICES
Board determines that the record is insufficient for its
review, it shall remand the case to the agency below with
instructions to supplement the record.
4.7.2 The standard of review shall be
determined by the law creating the right of appeal. In the
absence of a specific statutory standard, the substantial
evidence rule will be applied, that is, neither the State Board
nor the hearing officer will substitute its judgment for that of
the agency below if there is substantial evidence in the
record for its decision and the decision is not arbitrary or
capricious. The State Board will make an independent
judgment with respect to questions of law.
4.8 State Board Decision
4.8.1 After considering the record from the
proceedings below, the written submissions and the
arguments made by the parties, if any, the hearing officer
shall submit a proposed written decision for the
consideration of the State Board.
4.8.2 The proposed decision shall comply with
Section 10126(a) of the Administrative Procedures Act. The
proposed decision shall be submitted to the State Board and
the parties within fifteen (15) days of the consideration date
or the filing of any post argument submissions.
4.8.3 The parties shall have twenty (20) days
from the date the proposed order is delivered to them to
submit in writing to the State Board and the other party any
exceptions, comments and arguments respecting the
proposed order. The parties may agree to shorten or waive
the comment period, or to consent to the hearing officer’s
recommendation without additional comment. When the
parties consent to the hearing officer’s recommendation,
they shall so advise the Executive Secretary.
4.8.4 The State Board shall consider the appeal
at its next regular meeting following receipt of the parties’
exceptions, comments, and arguments, if any, or the end of
the comment period, whichever occurs first.
4.8.5 The State Board shall consider the entire
record of the case and the hearing officer’s proposed
decision and any written comments thereto, in reaching its
final decision. The State Board’s decision shall be
incorporated in a final order which shall be signed and
mailed to the parties.
4.9 Student Discipline Appeals
4.9.1 To the extent possible, appeals of
decisions involving student discipline will be scheduled for
consideration by the hearing officer within thirty (30) days
of the receipt of the notice of appeal.
4.9.2 If an appeal involves disciplinary action
against a student receiving special education and related
services, the record must include evidence that a
Manifestation Determination Review was conducted
pursuant to the Department of Education’s Administrative
Manual for Special Education Services. Failure to provide
such evidence may result in reversal or remand to agency for
additional proceedings.
4.9.3 An appeal of or dispute about the
Manifestation Determination Review must be made to the
Department of Education as provided in the Administrative
Manual for Special Education Services. The State Board of
Education will not review such determinations.
5.0 Public Regulatory Hearings
5.1 Section 5.0 governs public hearings before the State
Board or its hearing officers where the State Board is
required to hold, or decides to hold, such hearings before
adopting or approving rules and regulations or taking other
regulatory action. See Note 1.
5.2 Notice that the State Board has scheduled a public
regulatory hearing shall be provided as required in Section
10115 of the Administrative Procedures Act. Notice of the
public hearing shall also be circulated to individuals and
agencies on the State Board’s mailing list for meeting
agendas. The notice of the hearing shall indicate whether the
State Board will conduct the hearing, or designate a hearing
officer for that purpose.
5.3 Creation of record of public hearing
5.3.1 Any party may request the presence of a
stenographic reporter on notice to the Executive Secretary at
least ten (10) days prior to the date of the hearing. The
requesting party shall be liable for the expense of the
reporter and of any transcript the party requests.
5.3.2 If a stenographic reporter is not present at
the hearing, the State Board shall cause an electronic
recording of the hearing to be made by tape recorder or other
suitable device. Electronic recordings shall be destroyed
unless a written request to preserve it is made to the
Executive Secretary within three months of the final order
issued in the hearing. Any party requesting that a written
transcript be made from the recording shall bear the cost of
producing the transcript.
5.4 Subpoenas
5.4.1 The State Board or its hearing officer may
issue subpoenas for witnesses or other evidence for the
public hearing. Where possible, such subpoenas shall be
delivered to the party to whom they are directed at least ten
(10) days prior to the public hearing.
5.4.2 The State Board or its hearing officer may
also, in its discretion, issue subpoenas at the request of a
person interested in the proceedings. Requests for such
subpoenas shall be delivered to the Executive Secretary at
least fifteen (15) days prior to the date of the hearing, unless
additional time is allowed for good cause.
5.4.3 The party requesting the subpoena is
responsible for delivering it to the person to whom it is
directed.
5.5 Documents
5.5.1 The State Board or its hearing officer
shall, at the beginning of the hearing, mark as exhibits any
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GENERAL NOTICES 555
documents it has received from the public as comment and
any other documents which it will consider in reaching its
decision. Documents received during the hearing shall also
be marked as exhibits.
5.5.2 Any person or party submitting a
document before or during the public hearing shall provide
at least eight (8) copies of the document to the State Board,
unless directed otherwise.
5.6 Witnesses
5.6.1 The order of witnesses appearing at the
hearing shall be determined by the State Board or its hearing
officer. The State Board or its hearing officer may direct an
agency or organization to designate a single person to
present the agency or organization’s position at the public
hearing.
5.6.2 The State Board or its hearing officer may
limit a witness’s testimony and the admission of other
evidence to exclude irrelevant, insubstantial or unduly
repetitious comment and information.
5.6.3 Any person who testifies at a public
hearing shall be subject to examination by the State Board or
its hearing officer. The State Board or its hearing officer
may in their discretion allow cross examination of any
witness by other participants in the proceedings.
5.7 At the conclusion of the public hearing, the State
Board shall issue its findings and conclusions in a written
order in the form provided in Section 10118(b) of the
Administrative Procedures Act. The Board’s order shall be
rendered within a reasonable time after the public hearing.
Note 1: The State Board is not subject to the Administrative
Procedures Act when approving (or refusing to approve)
regulations or regulatory action of the Department of Education,
provided that the Department has complied with applicable
portions of the Act. See 14 Del. C. '105(b).
DEPARTMENT OF INSURANCE
DOMESTIC/FOREIGN INSURERS
BULLETIN NO. 12
REGULATION 11 REGISTER OF
NON-EXEMPT HEALTH INSURANCE PLANS
Issued: September 17, 2002
Regulation 11 relating to the arbitration of health
insurance claims and internal review processes of medical
insurance carriers became effective on March 11, 2002.
With respect to 18 Del.C. §§ 3349(b) and 3565(b)1, section
4.2 of Regulation 11 recognizes that Regulation 11 would
not apply to the arbitration of claims arising under health
insurance policies exempt from state regulation under
federal law or regulation.
The intent of section 4.2 was to provide an
accommodation to health insurers and medical service
providers so that providers would be able to efficiently
determine whether particular plan identifiers numbers
referred to exempt or non-exempt plans. The maintenance
of the register was not intended to constitute a conclusive
determination on the legal status of a plan. By maintaining
such a register, Delaware Insurance Department
("Department") will not conduct any independent inquiry to
verify the information provided for the register by any
insurer.
The Department will create a register known as the
"Register of Non-Exempt Health Insurance Plans". At
the end of each quarter starting on September 30, 2002,
insurers subject to the provisions of Regulation 11 are to
provide to the Department a list of non-exempt plan numbers
to which Regulation 11 would apply. Except for plans that
are added or deleted between each report, these plan
numbers will be the same group and identification numbers
plan members present to providers at the time of treatment.
The Department will section the register alphabetically by
insurer and either numerically or alpha-numerically for the
plan identifiers for each insurer.
Insurers shall submit the quarterly list by the fifteenth of
the month following the end of each quarter. The list should
be provided in Excel format as an attachment to an e-mail
transmission or by sending a 3.5" diskette or CD-ROM to
the Department. The quarterly report shall include the name
of the Insurer’s contact person and that person’s email
address. Any format changes required by the Department
shall be provided to the named contact person.
The contact person at the Delaware Insurance
Department is Ms. Carol Jones. The e-mail address for
submissions is cjones@deins.state.de.us. The mail address
is Delaware Insurance Department, 841 Silver Lake
Boulevard, Dover, DE 19904-2465. Questions relating to
the register may be directed to Ms. Jones at 302-739-4251.
Donna Lee H. Williams Insurance Commissioner
1. Regulation 11 referred to 18 Del. C. §§ 3348(b)
and 3559E(b). Those sections were renumbered by the
Delaware Code revisers to 3349(b) and 3565(b) respectively.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
556 GENERAL NOTICES
DEPARTMENT OF PUBLIC SAFETY
BOARD OF EXAMINERS OF CONSTABLES
Statutory Authority: 10 Delaware Code, Ch. 27
(10 Del.C. Ch. 27)
Pursuant to the Guidelines in 29 Del.C. Section
10118(a)(1)-(7), the Board of Examiners of Constables
("Board") hereby issues this Order. Following notice and a
public hearing held on May 20, 2002 on the proposed
adoption of promulgated rules and regulations 5.0 Firearm’s
Policy, the Board makes the following Findings and
Conclusions:
Summary of Evidence and Information Submitted
1. The Board did not receive written evidence or
information pertaining to the proposed adoption.
2. The Board expressed its desire to adopt the rule to
clarify the use of firearms on patrol.
Findings of Fact
3. The public was given notice and the opportunity to
provide the Board with comments, in writing, on the
adoption of the rule. The written comments received are
described in paragraph 1.
4. The Board finds that the adoption of this rule will
clarify the use of firearms on patrol.
5. The Board finds that the adoption will have no
adverse impact on the public.
6. The Board finds that the adoption is well written
and describes its intent to adopt the rule to clarify the use of
firearms on patrol.
Conclusion
7. The proposed rule was promulgated by the Board in
accord with the statutory duties and authority as set forth in
10 Del.C. Section 2701 et seq. and, in particular, 10 Del.C.
Section 2702(b).
8. The Board deems this adoption necessary and
expedient to the full and official performance of its duties
under 10 Del.C. Section 2701 et. seq.
9. The Board concludes that the adoption of this rule
will be in the best interests of the citizens of the State of
Delaware.
10. The Board therefore adopts this rule pursuant to 10
Del.C. Section 2702(b) and guidelines of 29 Del.C. Section
10118 of the Administrative Procedures Act. See, Strauss v.
Silverman, Del. Supr., 399 A.2d 192 (1979).
11. This adopted rule replaces in its entirety any former
rule or regulation heretofore promulgated by the Board.
12. The effective date of this Order shall be July 17,
2002.
13. Attached hereto and incorporated herein this order
is the adopted rule marked as exhibit A and executed
simultaneously by the Board on the 20th day of May, 2002.
Colonel L. Aaron Chaffinch, Chairman
August 28, 2002
W. Michael Tupman, Esquire, Deputy Attorney General
August 28, 2002
1.0 Experience
2.0 Appeal
3.0 Law Enforcement Exemption
4.0 Employment
5.0 Firearm’s Policy
1.0 Experience
1.1 A constable must meet the minimum training
standards for a full-time police officer as established by the
Council on Police Training.
Adopted 09/10/86 Amended 05/16/00
2.0 Appeal
2.1 Any applicant who is rejected for a commission as a
constable may, within 20 days of such notice of rejection,
submit a written notice of appeal.
2.2 A hearing date, to be determined by the Board, will
be convened to take relevant evidence on the appeal.
2.3 Such proceedings shall be conducted in accordance
with the administrative procedures act (Title 20).
2.4 The Board decision, in writing, will be mailed to
the applicant within ten working days after the hearing.
Adopted 09/10/86
3.0 Law Enforcement Exemption
3.1 Applicants, who were prior law enforcement
officers in any jurisdiction and have been away from police
work for not more than five (5) years, will be considered for
commissions on a case-by-case basis.
3.2 Applicants, who have been law enforcement
officers in the past but have been away from active law
enforcement for more than five (5) years, will be required to
take an MMPI (Minnesota Multiphasic Personality
Inventory), under the conditions noted in Rule 4.0, and a
comprehensive, multiple-choice examination, equivalent to
the C.O.P.T. exam to identify weaknesses in their knowledge
of law enforcement. Once those shortcomings have been
identified, the individual officer will be required to take the
requisite training where the deficiency was noted.
Adopted 10/16/96 Amended 05/16/00
4.0 Employment
4.1 All applicants must submit written testimony from
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
GENERAL NOTICES 557
five (5) reputable citizens attesting to good character,
integrity, and competency.
4.2 All applicants must submit to an MMPI (Minnesota
Multiphasic Personality Inventory) evaluation performed by
a licensed psychologist who has knowledge of the
requirements of the duties of the Constable position, that the
applicant is psychologically fit to function as a competent
Constable.
4.3 All applicants shall be required to submit an
application and their fingerprints to the Director of Detective
Licensing on the appropriate forms. The Director of the
State Bureau of Identification shall set the processing fee.
4.4 No full-time police officer may apply for a
commission as a constable.
4.5 All applicants seeking a new commission as a
constable shall be required to submit a $100.00 application
fee.
4.6 A $50.00 annual renewal fee shall be required to
accompany the renewal application each year thereafter.
Adopted 05/16/00
5.0 Firearm’s Policy
5.1 No person licensed under Title 24 Chapter 13
Sections 1315 & 1317 shall carry a firearm unless that
person has first passed an approved firearms course given by
a Board approved certified firearms instructor, which shall
include a minimum 40 hour course of instruction.
Individuals licensed to carry a firearm must shoot a
minimum of three (3) qualifying shoots per year, scheduled
on at least two (2) separate days, with a recommended 90
days between scheduled shoots. Of these three (3), there will
be one (1) mandatory "low light" shoot. Simulation is
permitted and it may be combined with a daylight shoot.
5.2 Firearms - approved type of weapons
5.2.1 9mm
5.2.2 .357
5.2.3 .38
5.2.4 .40
5.3 All weapons must be either a revolver or semiautomatic
and must be double-action or double-action only
and must be maintained to factory specifications.
5.4 Under no circumstances will anyone be allowed to
carry any type of shotgun or rifle or any type of weapon that
is not described herein.
5.5 All individuals must qualify with the same type of
weapon that he/she will carry.
5.6 All ammunition will be factory fresh (no re-loads).
5.7 The minimum passing score is 75%. All licenses
are valid for a period of one (1) year.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
558 CALENDAR OF EVENTS/HEARING NOTICES
DEPARTMENT OF
ADMINISTRATIVE SERVICES
BOARD OF ARCHITECTS
Notice of Public Hearing
PLEASE TAKE NOTICE, pursuant to 29 Del. C.
Chapter 101 and 24 Del. C. Chapter 3, Section 306 (1), the
Delaware Board of Architects proposes to revise its Rules
and Regulations. The proposed Rules and Regulations are a
comprehensive revision to the exisiting Rules and
Regulations of the Board of Architects. The purpose of these
revisions is to update the rules and regulations, to conform
with changes in practices and procedures of the examination
and licensing of architects and changes in the applicable
statutes.
A Public Hearing will be held on the proposed Rules
and Regulations on Wednesday, November 6, 2002 at 2:00
p.m. in Conference Room A, second floor, Cannon Building,
861 Silver Lake Boulevard, Dover, Delaware 19904. The
Board will receive and consider input in writing from any
person on the proposed Rules and Regulations. Any written
comments should be submitted to the Board in care of Gayle
Melvin at the above address. The final date to submit
written comments shall be at the above scheduled Public
Hearing. Anyone wishing to obtain a copy of the proposed
Rules and Regulations or make comments at the Public
Hearing should notify Gayle Melvin at the above address or
by calling (302) 744-4518.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF OCCUPATIONAL THERAPY
The Delaware Board of Occupational Therapy in
accordance with 24 Del. C. §2006(a)(1) proposes changes to
its rules and regulations. The changes in Rules 2.0 and 5.0
institute continuing education as a refresher for applicants
who delay licensure after passing the NBCOT exam and
clarify the continuing education requirements for licensees.
A public hearing will be held at 4:00 p.m. on November
20, 2002 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 Delaware Board of
Occupational Therapy, c/o Vicki Gingrich, 861 Silver Lake
Blvd., Cannon Building, Suite 203, Dover DE 19904.
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 AGRICULTURE
HARNESS RACING COMMISSION
The Harness Racing Commission issues these proposed
rules pursuant to 3 Del. C. §10005 and 29 Del. C. §10115.
The Commission will accept written comments from
October 1, 2002 through October 30, 2002. The
Commission will hold a public hearing on the proposed
amendments on October 21, 2002 at 12:00 p.m. at
Harrington Raceway, Harrington, DE. Written comments
should be submitted to John Wayne, Administrator of
Racing, Delaware Harness Racing Commission, 2320 S.
DuPont Highway, Dover, DE 19901.
The Commission proposes to amend the Rules as
follows: 1)amend Rule 6.2.9 to prohibit trailing horses on a
half-mile track; 2)amend Rule 8.3.6 to further clarify that
the use of phenylbutazone in two year old horses is
prohibited and the penalty for violations; 3)enact a new Rule
8.7 to prohibit the possession or use of drugs or substances
for which there is no analytical method to detect such as
erythropoietin, darbepoietin, and perfluocarbon, and prohibit
the possession or use of any drug or substance not approved
by the FDA; 4)amend Rule 10.2.7.4 to require written notice
to licensees of license and disciplinary decisions.
STATE BOARD OF EDUCATION
The State Board of Education will hold its monthly
meeting on Thursday, October 17, 2002 at 1:00 p.m. in the
Townsend Building, Dover, Delaware.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
PUBLIC NOTICE
Delaware Medicaid/Medical Assistance Programs
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, the Delaware Health and Social Services
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
CALENDAR OF EVENTS/HEARING NOTICES 559
(DHSS) / Division of Social Services / Medicaid/Medical
Assistance Program is proposing to amend the Title XIX
Medicaid State Plan to establish a client co-pay amount for
non-emergency medical transportation services.
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 October 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
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, the Delaware Health and Social Services
(DHSS) / Division of Social Services / Food Stamp Program
is proposing to implement policy changes to Section 9060 of
the Division of Social Services Manual. The purpose of this
regulatory action is to mandate the use of utility standards.
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 October 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
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 implement policy changes to Section 9085 of
the Division of Social Services Manual. This regulatory
action is related to the six-month reporting requirements for
certified food stamp 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 and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by October 31, 2002.
The action concerning the determination of whether to
adopt the proposed regulation will be based upon the results
of Department and Division staff analysis and the
consideration of the comments and written materials filed by
other interested persons.
DEPARTMENT OF JUSTICE
DELAWARE SECURITIES ACT
Notice Of Proposed Revisions To The Rules And
Regulations Pursuant To The Delaware Securities Act
In compliance with the State’s Administrative
Procedures Act (APA-Title 29, Chapter 101 of the Delaware
Code) and section 7325(b) of Title 6 of the Delaware COde,
the Division of Securities of the Delaware Department of
Justice hereby publishes notice of proposed revisions to the
Rules and Regulations Pursuant to the Delaware Securities
Act. The Division proposes hereby to amend sections 600,
601, 608, and 700 of the Rules and Regulations Pursuant to
the Delaware Securities Act and to add a new section 610.
Persons wishing to comment on the proposed
regulations may submit their comments in writing to:
James B. Ropp
Securities Commissioner
Department of Justice
State Office Building, 5th Floor
820 N. French Street
Wilmington, DE 19801
The comment period on the proposed regulations will be
held open for a period of thirty days from the date of the
publication of this notice in the Delaware Register of
Regulations.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
560 CALENDAR OF EVENTS/HEARING NOTICES
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF WATER RESOURCES
REGISTER NOTICE
Brief Synopsis of the Subject, Substance and Issues
The Department of Natural Resources and
Environmental Control, Division of Water Resources,
Surface Water Discharges Section, held a public hearing on
August 29, 2000 to receive comments on proposed
amendments to the Regulations Governing the Control of
Water Pollution . The proposed amendments and a notice of
the August 29, 2000 public hearing were published in the
Delaware Register of Regulations on July 1, 2000. The
Department responded to the comments entered into the
public hearing record in a Response Document dated March
8, 2002. The Hearing Officer’s Report to the Secretary
recommended adoption of the revisions as discussed in the
Response Document. On August 26, 2002, the Secretary
ordered that the Regulations be amended as proposed with
the revisions outlined in the response document. Under 29
Del C. no agency can adopt a regulation if more than 12
months has elapsed since the end of the public comment
period, therefore these regulations are being published in
their modified form to provide the public an additional
opportunity to submit comments before the amendments are
promulgated in the manner required by law.
Notice Of Public Comment:
The Department of Natural Resources and Environmental
Control, Division of Water Resources, Surface Water
Discharges Section, held a public hearing on August 29, 2000
to receive comments on proposed amendments to the
Regulations Governing the Control of Water Pollution . The
Department responded to the comments entered into the public
hearing record in a Response Document sent to the Hearing
Officer dated March 8, 2002. In his report, the Hearing
Officer recommended the adoption of the revisions as
discussed in the Response Document. The Department is
publishing the Secretary’s Order and the revised version of the
Regulations Governing the Control of Water Pollution for
public comment before final promulgation of the amendments
in the manner required by law. The public comment period
will remain open until October 31, 2002. Comments should be
sent in writing to Paul Janiga, Surface Water Discharges
Section, Division of Water Resources, DNREC, 89 Kings
Hwy., Dover, DE 19901. Copies of the Department’s
Response Document are available by contacting Paul Janiga at
(302) 739-5731.
DELAWARE RIVER BASIN
COMMISSION
25 STATE POLICE DRIVE
P.O. BOX 7360
WEST TRENTON, NJ 08628-0360
The Delaware River Basin Commission will meet
Wednesday, October 16, 2002 in West Trenton, New Jersey.
For more information contact Pamela M. Bush, Commission
Secretary and Assistant General Council, at (609) 883-9500
ext. 203.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
SUBSCRIBE TO THE OFFICIAL
SOURCE OF COMPLETE
INFORMATION ON DELAWARE
STATE REGULATIONS
THE
DELAWARE
REGISTER
OF
REGULATIONS
A single-source document for regulatory
information, including proposed and adopted
text of state regulations, all emergency
regulations, Governors Executive Orders and
Appointments, Attorney General Opinions,
General Notices and notices of public
hearings and open meetings of state agencies.
PUBLISHED MONTHLY - $120.00 PER YEAR
YES, PLEA S E ENTER MY SUBSCRIPTION FO R TH E DELA WA RE REGIS TER A T $120/YEA 
R
You will be billed upon receipt of your order. Subscription period runs from 
January to December. Mid-year
subscriptions will be prorated at $10 per issue. Back issues are available at 
$12 per issue. Subscription fees are nonrefundable.
NA M E ________________________________ A DDRESS 
___________________________________
ORGANIZATION _______________________________________ CITY 
_______________________
_______________ ___________ _____________ __________________ P HON E STATE ZIP 
EM AIL
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
Visit The Delaware General
Assembly On The Web!
The General Assembly Website features:
• Current legislative information
• Information on both the Senate and House of Representatives
• Access the Delaware Code
• Access to the Delaware Register of Regulations
• Information on the legislative process
• Various reports and publications
The General Assembly Website is located at:
http://www.legis.state.de.us
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002
LEGISLATIVE BILL SUBSCRIPTION SERVICES
Order Form (please print or type)
NAME ________________________________ ADDRESS __________________________________
ORGANIZATION _______________________ CITY _________________ FAX ______________
PHONE _____________ STATE ___________ ZIP _____________ EMAIL ________________
Please check the specific service(s) to which you wish to subscribe :
SERVICES ANNUAL COST
One copy of all legislation introduced:
_ Picked up by subscriber *- - - - - - - - - - - - - - - - - - - - - - - - 
$100.00
_ Mailed daily via First Class postage - - - - - - - - - - - - - - - - - - - - 
$775.00
One copy of all legislation signed by the Governor:
_ Mailed via First Class postage - - - - - - - - - - - - - - - - - - - - - 
$195.00
One copy of House and Senate calendars:
_ 1st Session set - - - - - - - - - - - - - - - - - - - - - - - - - - - - $75.00
_ Picked up by subscriber *- - - - - - - - - - - - - - - - - - - - - - - - 
$100.00
_ Mailed daily via First Class postage - - - - - - - - - - - - - - - - - - - - 
$775.00
One copy of all Governor’s Advisories:
_ Mailed via First Class postage - - - - - - - - - - - - - - - - - - - - - 
$25.00
Daily Legislative Agendas and weekly Standing Committee Notices:
_ Via Fax - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - $150.00
* Subscribers who choose to pick up their materials at Legislative Hall are 
requested to do so at least once a week, due to
limited on-site file space. Thank you.
If you have any questions about our subscription services, please contact the 
Division of Research by dialing, toll-free, (800)
282-8545 (in state) or via E-Mail at jhague@state.de.us. Please dial (302) 
744-4114 if you are calling from outside
Delaware.
Please return this order form to the Division of Research atP.O. Box 1401, 
Legislative Hall, Dover, Delaware, 19903, or fax it
to (302) 739-3895 as soon as possible. (Don’t forget to make a copy for your own 
files). You will be billed upon our receipt
of your order. Your service(s) will begin, promptly, when payment is received 
and the General Assembly convenes. Thank
you for using the Subscription Services of the Division of Research.
DELAWARE REGISTER OF REGULATIONS, VOL. 6, ISSUE 4, TUESDAY, OCTOBER 1, 2002