(Document certified by Jeffrey W. Hague ) Signed by Jeffrey W. Hague Time: 2010.08.31 13:42:38 Z Delaware Register of Regulations Issue Date: September 1, 2010 Volume 14 - Issue 3, Pages 126 - 203 IN THIS ISSUE: Regulations: Proposed Final Governor: Executive Orders Calendar of Events & Hearing Notices Pursuant to 2 9 Del.C. Chapter 11, Subchapter III , th is iss ue of th e Register co ntains all documents required to be pu blished, and received, o n o r before August 1 6, 2010. INFORMATION ABOUT THE DELAWARE 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 The Delaware Register will publish any regulations that are proposed to be adopted, amended or repealed and any emergency regulations promulgated.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 • 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: 13 DE Reg. 24-47 (07/01/09) Refers to Volume 13, pages 24-47 of the Delaware Register issued on July 1, 2009. SUBSCRIPTION INFORMATION The cost of a yearly subscription (12 issues) for the Delaware Register of Regulations is $135.00. Single copies are available at a cost of $12.00 per issue, including postage. For more information contact the Division of Research at 302-744-4114 or 1-800-282-8545 in Delaware. CITIZEN PARTICIPATION IN THE REGULATORY PROCESS Delaware citizens an d othe r in terested p arties may p articipate in the pr ocess b y which a dministrative regulations are adopted, amended or repealed, and may initiate the process by which the validity and applicability of regulations is determined.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notice and full tex t of su ch proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this title.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 oth er regulations th at ma y be impacted or affected by the proposal, and shall st ate the manner in wh ich 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 he aring sha ll not be sched uled less than 20 days fo llowing publication of no tice o f the p roposal in the Register of Regulations. If a public hearing will be held on the prop osal, notice of the time, date, pl ace and a summary of the n ature o f the p roposal shall a lso be published in at lea st 2 Delawa re newspapers o f g eneral 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. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 INFORMATION ABOUT THE DELAWARE REGISTER OF REGULATIONS The opportunity for public comment shall be held open for a minimum of 3 0 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, upo n a ll the testim onial a nd written e vidence and information sub mitted, toge ther with summaries o f the e vidence a nd information b y subordinates, the agency sha ll de termine whether a r egulation 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 r egulation or to take no action and the decision shall be supported by it s findings on the evidence and infor mation received; ( 4) Th e exact te xt an d citation of such re gulation ad opted, am ended 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 th e pr eceding section, n o judicial r eview o f a regulation is a vailable u nless a complaint therefor is filed in the Court within 30 days of the day the agency order with respect to the regulation was published in the Register of Regulations. CLOSING DATES AND ISSUE DATES FOR THE DELAWARE REGISTER OF REGULATIONS ISSUE DATE CLOSING DATE CLOSING 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 17 4:30 p.m. DIVISION OF RESEARCH STAFF Deborah A. Porter, In terim Supervisor; Judi Abbo tt, Administrative S pecialist I; Jeffrey W . Hag ue, Registrar of Regulations; Robert Lupo, Printer; Ruth Ann Melson, Legislative Librarian; Deborah J. Messina, Print Shop Supervisor; Kathleen Morris, Administrative S pecialist I; Debbie Puz zo, Research A nalyst; Don Sellers, Printer; Georgia Roman, Unit Operations Support Specialist; Victoria Schultes, Administrative Specialist II; Rochelle Yerkes, Administrative Specialist II. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 TABLE OF CONTENTS Cumulative Tables............................................................................................................................ ............ 131 PROPOSED DEPARTMENT OF AGRICULTURE Harness Racing Commission 501 Harness Racing Rules and Regulations ........................................................................ ............ 134 DEPARTMENT OF EDUCATION Office of the Secretary 405 Minor Capital Improvement Programs ........................................................................... ............ 135 727 Credit for Experience for Educators and for Secretarial Staff ........................................ ............ 138 940 Early Admission to Kindergarten for Gifted Students .................................................... ............ 140 DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Medicaid and Medical Assistance School-Based Wellness Center Clinic Services ................................................................... ............ 142 DEPARTMENT OF INSURANCE 908 Procedures for Responding to Freedom of Information Requests ....................................... ............ 144 DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Division of Air and Waste Management 1138 Emission Standards for Hazardous Air Pollutants for Source Categories ................... ............ 147 DEPARTMENT OF STATE Division of Historical and Cultural Affairs 100 Historic Preservation Tax Credit Program ..................................................................... ............ 148 Division of Professional Regulation Delaware Gaming Control Board 101 Regulations Governing Bingo ................................................................................. ............ 156 Public Service Commission 1008 Regulations Governing Requests made pursuant to the Freedom of Information Act ............ 162 FINAL DEPARTMENT OF EDUCATION Office of the Secretary 501 State Content Standards................................................................................................ ............ 167 DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Long Term Care Residents Protection 3220 Training and Qualifications for Nursing Assistants and Certified Nursing Assistants .. ............ 169 Division of Social Services DSSM: 11003.9.1 Income and 11003.9.5 Making Income Determinations.......................... ............ 178 11004.2 Interviews and Necessary Documentation ................................................ ............ 182 11005.4 Child Care Overpayments ......................................................................... ............ 187 DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Division of Fish and Wildlife 3541 Atlantic Sharks.............................................................................................................. ............ 191 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 TABLE OF CONTENTS DEPARTMENT OF TRANSPORTATION Division of Planning 2311 Long-Term Lease Policies and Practices .................................................................... ............ 196 GOVERNOR Executive Order: No. 20: In Observance of War Hero and Delaware Farmer Robert ‘Bob’ Minner, Jr.................. ............ 199 CALENDAR OF EVENTS/HEARING NOTICES Delaware River Basin Commission, Notice of Public Hearing and Monthly Business Meeting.......... ............ 200 Department of Agriculture, Harness Racing Commission, Notice of Public Hearing......................... ............ 200 State Board of Education, Notice of Monthly Meeting........................................................................ ............ 200 Department of Health and Social Services, Div. of Medicaid and Medical Assistance, Notice of Public Comment Period................................................................................................ ............ 200 Department of Insurance, Notice of Public Comment Period.......................................................... ............ 201 Department of Natural Resources and Environmental Control, Div. of Air and Waste Management, Notice of Public Comment Period................................................................................................ ............ 201 Department of State, Div. of Cultural Affairs, Notice of Public Comment Period.......................... ............ 202 Division of Professional Regulation, Notice of Public Comment Period................................. ............ 202 Public Service Commission, Notice of Public Comment Period............................................... ............ 202 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 CUMULATIVE TABLES The table printed below lists the regulations that have been proposed, adopted, amended or repealed in the preceding issues of the current volume of the Delaware Register of Regulations. The regulations are listed alphabetically by the promulgating agency, followed by a citation to that issue of the Register in which th e re gulation was pu blished. Pro posed re gulations ar e desig nated 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 RIVER BASIN COMMISSION Amendments to the Water Quality Regulations, Water Code and Comprehensive Plan to Update Water Quality Criteria for Toxic Pollutants in the Delaware Estuary and Extend These Criteria to the Delaware Bay................................................ 14 DE Reg. 70 (Prop.) DEPARTMENT OF AGRICULTURE Harness Racing Commission 501 Harness Racing Rules and Regulations, Subsection 5.1.8 Substance Abuse/Addiction........................................................................................... 14 DE Reg. 23 (Final) DEPARTMENT OF EDUCATION Office of the Secretary 251 Family Educational Rights and Privacy Act (FERPA)................................. 14 DE Reg. 26 (Final) 501 State Content Standards............................................................................. 14 DE Reg. 6 (Prop.) 545 K to 12 School Counseling Programs......................................................... 14 DE Reg. 28 (Final) 920 Educational Programs for English Language Learners (ELLs)................... 14 DE Reg. 103 (Final) Professional Standards Board 1503 Educator Mentoring .................................................................................. 14 DE Reg. 29 (Final) 1521 Elementary Teacher.................................................................................. 14 DE Reg. 83 (Prop.) DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Medicaid and Medical Assistance Combining §1915(c) Home and Community-Based Services Waivers.............. 14 DE Reg. 88 (Prop.) Non-Emergency Medical Transportation Services............................................. 14 DE Reg. 103 (Final) Division of Public Health 4455 Delaware Regulations Governing a Detailed Plumbing Code................... 14 DE Reg. 36 (Final) Division of Social Services DSSM: 3000 Temporary Assistance for Needy Families (TANF) - Definition.... 14 DE Reg. 91 (Prop.) 3000.4 TANF and State Only Foster Care............................................ 14 DE Reg. 91 (Prop.) 3004 Specified Relationship.................................................................. 14 DE Reg. 91 (Prop.) 3004.1 Living in the Home.................................................................... 14 DE Reg. 91 (Prop.) 3010 Participation and Cooperation in Developing CMR...................... 14 DE Reg. 91 (Prop.) 3018 General Assistance (GA)............................................................. 14 DE Reg. 91 (Prop.) 3021 Unrelated Children....................................................................... 14 DE Reg. 91 (Prop.) 3022 Ineligibility Due to Family Cap...................................................... 14 DE Reg. 91 (Prop.) 3027 Age as a Condition of Eligibility.................................................... 14 DE Reg. 91 (Prop.) 3027.2 Minor Parents............................................................................ 14 DE Reg. 91 (Prop.) 3028.1 Mandatory Composition of Assistance Units............................. 14 DE Reg. 91 (Prop.) 3028.2 Optional Composition of Assistance Units................................ 14 DE Reg. 91 (Prop.) 4001 Family Budget Group................................................................... 14 DE Reg. 91 (Prop.) 4001.1 Examples to Illustrate Rules Regarding Budget Groups........... 14 DE Reg. 91 (Prop.) 4004.3 Earned Income Disregards in GA............................................. 14 DE Reg. 91 (Prop.) 4007.1 Standards of Need/Payment Standard - GA............................. 14 DE Reg. 91 (Prop.) 4009 Determining Financial Eligibility and Grant Amounts in GA......... 14 DE Reg. 91 (Prop.) 11003.9.1: Income ................................................................................ 14 DE Reg. 8 (Prop.) 11003.9.5: Making Income Determinations .......................................... 14 DE Reg. 8 (Prop.) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 CUMULATIVE TABLES132 11004.2: Interviews ............................................................................... 14 DE Reg. 11 (Prop.) 11004.9: Authorizing Service ................................................................ 14 DE Reg. 11 (Prop.) 11005.4: Overpayments........................................................................ 14 DE Reg. 15 (Prop.) 11005.4.1: Determine the Overpayment Amount.................................. 14 DE Reg. 15 (Prop.) 11005.4.2: Overpayment Notices.......................................................... 14 DE Reg. 15 (Prop.) 11005.4.3: Role of Audit and Recovery................................................. 14 DE Reg. 15 (Prop.) 11006.3 Service Authorization............................................................... 14 DE Reg. 39 (Final) Division of Substance Abuse and Mental Health 6001 Substance Abuse Facility Licensing Standards........................................ 14 DE Reg. 18 (Prop.) DEPARTMENT OF INSURANCE 704 Homeowners Premium Consumer Comparison ............................................... 14 DE Reg. 41 (Final) 901 Arbitration of Automobile and Homeowners’ Insurance Claims (Withdrawn).... 14 DE Reg. 44 (Final) 1208 New Annuity Mortality Table for Use in Determining Reserve Liabilities for Annuities ...................................................................................................... 14 DE Reg. 48 (Final) 1218 Determining Reserve Liabilities For Credit Life Insurance .............................. 14 DE Reg. 49 (Final) 1404 Long-Term Care Insurance.............................................................................. 14 DE Reg. 92 (Prop.) DEPARTMENT OF JUSTICE Fraud and Consumer Protection Division 102 Debt Management Services........................................................................ 14 DE Reg. 93 (Prop.) DEPARTMENT OF LABOR Division of Industrial Affairs 1101 Apprenticeship and Training Regulations.................................................. 14 DE Reg. 50 (Final) DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Division of Fish and Wildlife 3507 Black Sea Bass Size Limit; Trip Limits, Seasons; Quotas......................... 14 DE Reg. 113 (Final) 3702 Defnitions.................................................................................................. 14 DE Reg. 117 (Final) 3771 Oyster Harvesting Licensee Requirements............................................... 14 DE Reg. 117 (Final) 3901 Definitions.................................................................................................. 14 DE Reg. 52 (Final) 3902 Method of Take.......................................................................................... 14 DE Reg. 52 (Final) 3903 Federal Laws and Regulations Adopted................................................... 14 DE Reg. 52 (Final) 3904 Seasons.................................................................................................... 14 DE Reg. 52 (Final) 3907 Deer.......................................................................................................... 14 DE Reg. 52 (Final) 3921 Guide License........................................................................................... 14 DE Reg. 52 (Final) 3922 Hunter and Trapper Identification Number................................................ 14 DE Reg. 52 (Final) Division of Water Resources 7201 Regulations Governing the Control of Water Pollution, Section 9.5, Concentrated Animal Feeding Operation (CAFO)....................................... 14 DE Reg. 19 (Prop.) DEPARTMENT OF STATE Division of Professional Regulation 100 Board of Accountancy................................................................................. 14 DE Reg. 54 (Final) 2700 Board of Registration for Professional Land Surveyors............................. 14 DE Reg. 102(Prop.) 8800 Boxing and Combative Sports Rules and Regulations.............................. 14 DE Reg. 20 (Prop.) Public Service Commission 2002 Regulations Governing Certificates of Public Convenience and Necessity for Water Utilities......................................................................... 14 DE Reg. 120 (Final) DEPARTMENT OF TRANSPORTATION Division of Planning and Policy 2307 Delaware Safe Routes to School Regulations.......................................... 14 DE Reg. 56 (Final) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 CUMULATIVE TABLES 133 2311 Long-Term Lease Policies and Practices.................................................. 14 DE Reg. 21 (Prop.) EXECUTIVE DEPARTMENT Office of Management and Budget Freedom of Information Act Regulation............................................................. 14 DE Reg. 57 (Final) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS Symbol Key Arial 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 su ch p roposals, tog ether with cop ies of the e xisting regulation b eing a dopted, 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 st ate the manner in wh ich 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 he aring sha ll not be sched uled less than 20 days fo llowing publication of no tice o f the p roposal in the Register of Regulations. If a public hearing will be held on the prop osal, notice of the time, date, plac e and a summary of the nature o f th e p roposal shall a lso be pu blished in at lea st 2 Dela ware newsp apers o f g eneral 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 AGRIGULTURE HARNESS RACING COMMISSION Statutory Authority: 3 Delaware Code, Section 10005 (3 Del.C. §10005) 3 DE Admin. Code 501 PUBLIC NOTICE The Delaw are Harness Racing Co mmission, pu rsuant to 3 Del.C. §10 005, pro poses to cha nge it s Rule 7.6.6.7.7. The Commission will hold a public hearing on the proposed rule changes on October 12, 2010. (Please note this date has been changed from the previous posting of August 10, 2010.) Written comments sho uld b e sent to Hu gh J. Gallagher, Admin istrator of Harness Racing, Dep artment of Agriculture, 2320 S. D uPont Highway, Dover, DE 19901. Written comments will be accepted for thirty (30) days from the date of publication in the Register of Regulations on September 1, 2010. The proposed ch anges a re for the purpose o f updating the Rules a nd to m ore a ccurately reflect cur rent policies, pr actices a nd p rocedures. Copies a re pu blished on line at th e Register of Regulations we bsite: http:// regulations.delaware.gov/services/current_issue.shtml A copy is also available for inspection at the Harness Racing Commission office. 501 Harness Racing Rules and Regulations (Break in Continuity of Sections) 7.0 Rules of the Race (Break in Continuity within Sections) 7.6 Racing Rules DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS (Break in Continuity within Sections) 7.6.6 Recall Rules 7.6.6.1 In c ase o f a r ecall, a lig ht pla inly visib le t o th e dr ivers s hall be fla shed an d a r ecall sounded, but the starting gate shall proceed out of the path of the horses. In the case of a recall, whenever po ssible, the starter shall lea ve th e win gs of the ga te extended and gradually slo w the spe ed of the g ate to assi st in sto pping the field of ho rses. In an emergency, however, the starter shall use his discretion to close the wings of the gate. 7.6.6.2 There shall be n o recall after the word "go" ha s been give un less there is a me chanical failure of the starting gate. 7.6.6.3 The starter shall attempt to dispatch all horses away in position and on gait but there shall be no recall for a breaking horse. 7.6.6.4 In the event a horse causes two recalls, it may be scratched by the judges. 7.6.6.5 The starter may sound a recall for the following reasons: 7.6.6.5.1 A horse scores ahead of the gate; 7.6.6.5.2 There is interference; 7.6.6.5.3 A horse has broken equipment; 7.6.6.5.4 A horse falls before the word "go" is given; or 7.6.6.5.5 A mechanical failure of the starting gate; 7.6.6.5.6 A horse comes to the gate out of position. 7.6.6.6 A fine and/or suspension may be applied to any driver for: 7.6.6.6.1 Delaying the start; 7.6.6.6.2 Failure to obey the starter's instructions; 7.6.6.6.3 Rushing ahead of the inside or outside wing of the gate; 7.6.6.6.4 Coming to the starting gate out of position; 7.6.6.6.5 Crossing over before reaching the starting point; 7.6.6.6.6 Interference with another driver during the start; or 7.6.6.6.7 Failure to come up into position and stay in position behind the starting gate until the word “go” is given. *Please Note: Due to th e size of the proposed regulation, it is not being published here. A cop y of the regulation is available at: 501 Harness Racing Rules and Regulations DEPARTMENT OF EDUCATION OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 405 405 Minor Capital Improvement Programs Education Impact Analysis Pursuant To 14 Del.C. Section 122(d) A. Type of Regulatory Action Required Amendment to Existing Regulation DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS B. Synopsis of Subject Matter of the Regulation The Secretary of Education intends to amend 14 DE Admin. Code 405 Minor Capital Improvement Programs. This re gulation was r eviewed an d amended a s p art of the 5 year cycle . The a mendments ar e generally for clarification purposes. Persons wishing to present their views regarding this matter may do so in writing by the close of business on or before October 4, 2010 to Susan Haberstroh, Education Associate, Regulation Review, Department of Education, at 401 Federal Street, Suite 2, Do ver, Delaware 19901. A copy of th is regulation is a vailable from the above address or may be viewed at the Department of Education business office. C. Impact Criteria 1. Will the amended regulation help improve student achievement as measured against state achievement standards? The amended regulation is related to min or capital improvement and not directly related to student achievement as measured against state achievement standards. 2. Will the amended regulation help ensure that all students receive an equitable education? The amended regulation is related to minor capital improvement and does not directly affect ensuring all students receive and equitable education. 3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? The amended regulation is related to minor capital improvements and should support the health and safety of all students through improved flexibility and a better defined process. 4. Will the amended regulation help to ensure that all stude nts’ legal rights are respected? The amended regulation is related to minor capital improvements and should support the health and safety of all students through improved flexibility and a better defined process. 5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local board and s chool level? The amended regulation preserves the necessary authority and improves flex ibility of decision making at the local board and school level through a better defined minor capital improvement regulation. 6. Will the amended regulation place unnecessary reporting or admi nistrative require ments or mandates upon decision makers at the local board and school levels? The amended regulations will decrease reporting and administrative requirement s through improv ed flexib ility and a better defined Minor Capit al Improvement regulation. 7. Will the decision making authority and accountability for addressing the subject to be regulated be placed in the same entity? The amended regulation does no change decision making authority or accountability. 8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational po licies, in p articular to state educational p olicies a ddressing a chievement in the cor e academic subjects of mathematics, science, language arts and social studies? The amended regulation supports improved implementation through a better defined Minor Capital Improvement regulation. 9. Is ther e a less bu rdensome m ethod for ad dressing th e p urpose o f th e r egulation? The is no t a less burdensome method for addressing the purpose of this regulation. The amended should decrease reporting and administrative burden. 10. What is the cost to the State and to th e local scho ol boards of comp liance with th e regulation? The amended regulation will not have added costs to the State or local school board for compliance. The amendments should decrease the burden to districts. 405 Minor Capital Improvement Programs 1.0 Minor Capital Improvement Program 1.1 The Min or Ca pital Im provement Pro gram (M CI) is a p rogram to pr ovide fo r the p lanned an d programmed maintenance and repair of the school plant. The program's primary purpose is to keep real property assets in their original condition of completeness and efficiency on a scheduled basis. It is not fo r incr easing th e plan t inventory or ch anging its co mposition. Minor Ca pitol Impr ovement Projects ar e pr ojects that cost less tha n $5 00,000 u nless th e pr oject is fo r r oof r epair. T he MCI DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS program is shall be reviewed an nually by th e sc hool d istrict and shou ld b e com prised o f work necessary for good maintenance practice. 1.2 Minor Ca pitol Impr ovement Pr oject pur chase o rders sha ll be sub mitted to the S tate Division of Accounting prior t o any wo rk b eing done. A separate purchase or der m ust be subm itted for ea ch project. (One copy of the approv ed purchase order will be returned to the district for their information and record.) 1.3 Use of Funds: The following areas are authorized for the expenditure of Minor Capital Improvement Program funds: maintenance, repairs, modernization, inspections, testing, maintenance agreements and se rvice contr acts related to : r oofs, he ating systems, ventilation & air co nditioning systems, plumbing & w ater systems, electrical systems, windows, doors, floors, ceilin gs, masonry, structural built in equipment, painting, fire suppression systems, life safety systems, maintenance of site security systems ins tallation and mainte nance, s chool ground s, athletic facilities and play grounds, of fice equipment used for instructional purposes only and renovations, alterations and modernizations that do not require major structural changes. 1.4 Exclusions: Funds allocated for a specific project shall be used only for that project. Program funds may not be u sed for the following: m ovable e quipment o ther tha n office equipment used for instructional purposes that is transported from one location to another, routine janitorial supplies, new construction th at increases th e area of a bu ilding o r e xtends a ny of it s comp onent systems, site improvements that add to or extend the existing roadways or side walks, surfacing a non surfaced area for parking, completing major construction projects or specific items omitted or deleted from major construction projects or floor space allocated according to formula and used otherwise. 1.5 Invoices: Invoices may shall be sent directly to the Division of Accounting for processing. Payments may be made as the pr oject pr ogresses o r af ter wor k has b een comp leted an d a ccepted., as warranted by the nature and scope of the individual project(s). 2.0 Career Technical Program Equipment Replacement Requests 2.1 Requests for the r Replacement of Car eer Technical Pr ogram eq uipment may b e m ade un der the accomplished using Mino r Cap ital Impr ovement Pro gram Req uests shall be ma de wh en the equipment is within three years of its estimated life so districts can accumulate the necessary dollars to purchase the item. Distr icts de siring to p articipate in the Car eer T echnical Program equ ipment replacement program shall submit a request in writing to the Office of School Plant Planning at the time of th e Min or Ca pital Im provement Prog ram submission. D istricts should not include Career Technical Pr ogram re placements wit h r egular Major Ca pitol Im provement Pr ojects, V ocational Education Replacement funds. 2.2 Career Technical Program Equipment is defined as either a movable or fixed unit but not a built in unit. In addition, the equipment shall retain its original shape and appearance with use, be nonexpendable, and re present an investmen t which makes it fe asible an d advisable to cap italize and n ot lo se it s identity th rough incor poration into a dif ferent or mo re co mplex u nit. Co mputers an d comp uter peripheral eq uipment ma y be purchased using Minor Capit al Im provement Vocational Education Equipment Re placement Funds p rovided such equipment pur chased with such fu nds is use d in a vocational education setting for the service life of said equipment. 2.2.1 In order to replace Career Technical Program equipment, the equipment must have a minimum 10 year life expectancy, have a unit cost of $500 or more, be obsolete or more then five (5) years old, and be purchased with state, state and local or local funds. 2.3 Funds: Funds shall be allocated based on the percentage of a district's Vocational Division II Units to the total of such units of all participating districts. This percentage is applied to the total funds available in a given year for capital equipment. Career Technical Schools are 100% State funded. 3.0 Purchase Orders Funds may be expended anytime during the life of th e Act which appropriated the funds, usually, a three year period. Appropriations may be accumulated over those three years and expended for a major replacement when a sufficient balance is attained. However, should funds prove insufficient after DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS three yea rs o f ap propriations, the district m ust supp lement the pro gram fro m their own or other resources. Funds u nexpended whe n the ap propriating Ac t expir es sh all r evert to the S tate unless properly an d duly continued in accor dance with Office o f Ma nagement a nd Bud get requirements. Purchase orders shall include the reference ID system, sub system, component and deficiency code from the correction on the facility assessment website database. 4.0 Cost Limitations The maximum co st of a Min or Cap ital Improvement Project is $50 0,000 exce pt roof re pairs an d replacements which are not cost limited. Non roof projects exceeding the ceiling shall be requested in the Major Capital Improvement Program. 5.0 Temporary Employees Workers may be hired under the Minor Capital Improvement Program provided they are temporary hires and directly involved in the planning, constructing, or record maintenance of th e construction project. 6.0 Reporting At the end of each fiscal year, s School districts shall submit a list of completed projects accomplished under the Minor Capital Improvement Program account for Minor Capital Improvement summary and detailed projects in the accounting system as required by the Delaware Department of Education in order to accomplish proper control and reporting of said projects. 2 DE Reg. 1382 (2/1/99) 6 DE Reg. 1672 (6/1/03) 9 DE Reg. 970 (12/01/05) OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 727 727 Credit for Experience for Educators and for Secretarial Staff Education Impact Analysis Pursuant To 14 Del.C. Section 122(d) A. Type of Regulatory Action Required Reauthorization of Existing Regulation B. Synopsis of Subject Matter of the Regulation The Secretary of Education intends to readopt 14 DE Admin. Code 727 Credit for Experience for Educators and for Secretarial Staff. This regulation was reviewed as part of the 5 year review cycle. Persons wishing to present their views regarding this matter may do so in writing by the close of business on or before October 4, 2010 to Susan Haberstroh, Education Associate, Regulation Review, Department of Education, at 401 Federal Street, Suite 2, Do ver, Delaware 19901. A copy of th is regulation is a vailable from the above address or may be viewed at the Department of Education business office. C. Impact Criteria 1. Will the amended regulation help improve student achievement as measured against state achievement standards? The regulation addresses credit for experience as it relates to salaries for educators and secretarial staff. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 2. Will the amended regulation help ensure that all students receive an equitable education? The regulation addresses credit for experience as it relates to salaries for educators and secretarial staff. 3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? The regulation addresses credit for experience as it relates to salaries for educators and secretarial staff. 4. Will the amended regulation help to ensure that all students’ legal ri ghts are res pected? The regulation addresses credit for experience as it relates to salaries for educators and secretarial staff. 5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local board and school level? There are no proposed changes to the regulation. 6. Will the amended regulation place unnec essary reporting or administrative requireme nts or mandates upon decision makers at the local board and school levels? There are no proposed changes to the regulation. 7. Will the decision making authority and accountability for addressing the subject to be regulated be placed in the same entity? There are no proposed changes to the regulation. 8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational po licies, in p articular to state educational p olicies a ddressing a chievement in the cor e academic subjects of ma thematics, scie nce, la nguage a rts an d social stu dies? The re ar e no proposed ch anges to the regulation. 9. Is there a less burdensome method for addressing the purpose of the regulation? There are no proposed changes to the regulation. 10. What is the cost to the State and to the local school boards of compliance with the regulation? There are no proposed changes to the regulation. 727 Credit for Experience for Educators and for Secretarial Staff 1.0 Educators Graduating from a 5 Year or 4 Year Preservice Program 1.1 Definitions 1.1.1 The following words and terms when used in this subsection shall have the following meaning unless the context clearly indicates otherwise: “Eligible Employe e” includ es, bu t is no t limited to , teac hers, nurses, librarians, psychologist s, therapists, and counselors paid in accordance with 14 Del.C. §1305 that were hired into their first professional position after June 30, 2001 and zero years of experience. The exception to the zero years of experience would be an employee who qualified for military experience credit under 14 Del.C. §1312(a) and 14 DE Admin. Code 706. “Five Year Pre service Pro gram” me ans a re gionally accr edited college or u niversity five year planned degree program which includes an extensive clinical component or internship in the fifth year. “Four Y ear Pre service Pro gram” mea ns a r egionally accredited colle ge o r u niversity four year preservice undergraduate bachelor degree program. “Grade Point Average (GPA)” means the grade point average (GPA) stated on the official transcript of the regionally accredited college or university granting the bachelor’s degree in the Four Year Preservice Program. 1.2 Pursuant to 14 Del.C. §1312(a), a graduate of a five year preservice program, or a graduate of a four year preservice program who graduates with a GPA of 3.75 or higher on a 4.0 scale or the equivalent, shall be granted one year of experience on the applicable state salary schedule. 1.3 An employee eligible for one year of credited experience shall meet the definition of Eligible Employee in 1.1 and meet the requirements of 1.2. 9 DE Reg. 396 (9/1/05) 2.0 Administrators No credit for experience sha ll be give n for p art time e mployment in a dministrative o r super visory positions. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 3.0 Teachers 3.1 Days t aught as a substitute or as a p araeducator ma y no t be used toward cre dit for expe rience; however, emp loyment as a teach er on a r egular part time basis ma y be used towar d cr edit for experience. 3.1.1 A "regular part time" employee is one who is employed in a position which requires at least 50 hours per month for at least 9 months during any 12 consecutive month period. 4.0 Secretarial Staff Secretaries may be granted one (1) year's experience for each creditable year of expe rience as a secretary in private business, public or private school, or other governmental agency. 5.0 Creditable Experience Creditable experience includes experience obtained while working outside of Delaware. 6.0 Applicability This re gulation applies to the d etermination o f cred itable e xperience for salary pu rposes on ly, and does not apply to the determination of creditable experience for pension purposes which is specified in 29 Del.C. Ch. 55. Laws on employment and salary for administrators, teachers, and secretaries are found in 14 Del.C. Ch. 13. 3 DE Reg. 1542 (5/1/00) 8 DE Reg. 1607 (5/1/05) 9 DE Reg. 396 (9/1/05) OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 940 940 Early Admission to Kindergarten for Gifted Students Education Impact Analysis Pursuant To 14 Del.C. Section 122(d) A. Type of Regulatory Action Required Repeal B. Synopsis of Subject Matter of the Regulation The Secretary of Education seeks the consent of the State Board of Education to repeal 14 DE Admin. Code 940 Early Admission to Kindergarten for Gifted Students. This regulation was reviewed under the five year cycle, and a proposed amendment was published in the May 2010 Register of Regulations. The Department received comments from the Governor’s Advisory Council and thereafter reviewed the regulation and proposed amendment again. Upon this further review and consideration of the comments received, the Department determined that the identification by professionally qualified persons under 14 Del.C. §3101(4) and the local district’s assessment of the best interest of the child under 14 Del.C. §2702(b) is the better mechanism to determine early admission to Kindergarten for Gifted Students. That mechanism will allow students with all statutorily listed areas of abilities, singularly or in combination, to be assessed with the same criteria. Accordingly, the Department has determined that continued regulation in this area is unnecessary at this time. Persons wishing to present their views regarding this matter may do so in writing by the close of business on or before October 4, 2010 to Susan Haberstroh, Education Associate, Regulation Review, Department of Education, DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS at 401 Federal Street, Suite 2, Do ver, Delaware 19901. A copy of this regulation is ava ilable from the above address or may be viewed at the Department of Education business office. C. Impact Criteria 1. Will the repealed regulation help improve student achievement as measured against state achievement standards? The repealing of the regulation is consistent with the provisions in Delaware Code related to exceptions to entry into school. 2. Will the amended regulation help ensure that all students receive an equitable education? The repealing of the regulation is consistent with the provisions in Delaware Code related to exceptions to entry into school. 3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? The repeal of this regulation is not intended to affect the health and safety of students. 4. Will the amended regulation help to ensure that all students’ legal rights are respected? The repealing of the regulation is consistent with the provisions in Delaware Code related to exceptions to entry into school. 5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local board and school level? The repealing of the regulation is consistent with the provisions in Delaware Code related to exceptions to entry into school, especially as it related to authority and flexibility of local board and school levels. 6. Will the amended regulation place unnec essary reporting or administrative requireme nts or mandates upon decision makers at the local board and school levels? The repealing of the regulation is consistent with the provisions in Delaware Code related to exceptions to entry into school and is not intended to place unnecessary reporting, administrative requirements or mandates upon decision makers at the local board or school level. 7. Will the decision making authority and accountability for addressing the subject to be regulated be placed in the same entity? The repealing of the regulation is consistent with the provisions in Delaware Code related to exceptions to entry into school. 8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational po licies, in p articular to state educational p olicies a ddressing a chievement in the cor e academic subjects of mathematics, science, language arts and social studies? The repealing of the regulation is consistent with the provisions in Delaware Code related to exceptions to entry into school and not inconsistent with other state educational policies. 9. Is there a less burdensome method for addressing the purpose of the regulation? The repealing of the regulation is consistent with the provisions in Delaware Code related to exceptions to entry into school. 10. What is the c ost to the S tate and to the local scho ol bo ards of comp liance with th e re gulation? The Department does n ot con template a dditional costs to the state o r local school b oards with the repeal o f this regulation. 940 Early Admission to Kindergarten for Gifted Students 1.0 Requirements for Early Admission to Kindergarten When providing early enrollment into kindergarten of children who are gifted pursuant to the provisions of 14 Del.C. §3101(3)(a) o r ( b), lo cal sch ool d istricts an d cha rter scho ols shall com ply with the following requirements: 1.1 At the request of any parent, legal guardian or person acting as a caregiver pursuant to 14 Del.C. §202(f), the district or charter school shall conduct an evaluation of any such potentially gifted child by a school psychologist or other professionally qualified person, in conjunction with othe r appropriate personnel, to determine if the c hild possesses outstanding mental and cognitive abiliti es and to determine if the child can demonstrate the social, emotional, and physical maturity, normally expected for successfu l p articipation in kindergarten. A discussion shall be held to de termine the p arent, guardian or Relative Caregiver’s reason for requesting the child’s early admission to kindergarten prior to the legal age. 1.1.1 The evaluation shall be conducted at no cost to the parent, guardian or Relative Caregiver. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 1.2 In order to qualify for early enrollment, the child must achieve a measured score at least 1.5 standard deviations above the mean score for the assessment instrument used to determine the child’s mental and cognitive abilities. In addition, the evaluation mu st indicate that the child possesses the social, emotional and physical maturity to successfully participate in kindergarten. 1.3 Following the completion of the evaluation, a representative of the school district or charter school who is knowledgeable of the evaluation process and any assessments used during the evaluation shall talk with the parent, guardian or Relative Caregiver to discuss the evaluation results. 8 DE Reg. 1479 (4/1/05) DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF MEDICAID AND MEDICAL ASSISTANCE Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) PUBLIC NOTICE School-Based Wellness Center Clinic Services In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) with 42 CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is amending the Title XIX Medicaid State Plan to update the reimbursement methodology for School-Based Wellness Center Clinic 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, Planning & Policy Development Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4454 by September 30, 2010. The action concerning the determination of whether to adopt the pro posed 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 PROPOSAL The purpose of this proposal is to amend the Title XIX Medicaid State Plan to update the reimbursement methodology for School-Based Wellness Center Clinic Services. Statutory Authority • 42 CFR 440.205, Public Notice of Changes in Statewide Methods and Standards for Setting Payment Rates; • 42 CFR §440.90, Clinic Services; and, • State Medicaid Manual, Section 4320, Clinic Services. Summary of Proposed Amendment School-Based W ellness Center Clinic (SBWCCs), operated by the D ivision of Public H ealth in Delaware schools, provide primary prevention and early intervention services, including physical examinations, treatment of acute medical problems, community referrals, counseling and other supportive services to ch ildren in school or educational settings. The Title XIX Me dicaid State Plan is being revised to update the reimbursement methodology for School- Based Wellness Center Clinic Services, as the current rate methodology expires on September 30, 2010. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS Effective for dates of serv ice on October 1, 2010 and af ter, claims for School Based Wellness Center Clinic Services will no longer be reimbursed at a single encounter rate per child per year but will be paid based on billed procedure codes for individual services delivered by SBWCCs at the Delaware Medicaid P hysician Fee Schedule rates. No change w ill be made to the services provided under the s chool-based wellnes s center clinic s ervices benefit. The provisions of this amendment are subject to approval by the Centers for Medicare and Medicaid Services (CMS). Fiscal Impact Statement The proposal imposes no increase in cost on the General Fund. DMMA PROPOSED REGULATION #10-37 REVISION: ATTACHMENT 4.19-B Page 2 STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT State/Territory: DELAWARE School-Based Wellness Center Clinic Services, operated by the Division of Public Health in Delaware schools, are reimbursed a single rate once each benefit year for any client served in one of the school-based clinics. This rate methodology will sunset on September 30, 2010 using the DMAP physician fee schedule effective for dates of service on or after October 1, 2010. Except as otherwise noted in the plan, State-developed fee schedule rates are the same for both governmental and private providers of this service and the DM AP physician fee sched ule is available on the DMAP website. (http://www.dmap.state.de.us/downloads/hcpcs.html) Payments for clinic services will not exceed the upper payment limits set forth in 42 CFR 447.321:. (1) For services covered by Medicare, payments are not to exceed the Medicare rates or the Medicare aggregate payment amount for th ose se rvices; and (2 ) F or services no t co vered by Medicare, a ggregate p ayments ar e no t to exceed a n amount that could reasonably be estimated would have been paid under Medicare payment principles. Since the School-Based W ellness Centers will be p aid at the DMAP physician fee sc hedule rates, which is p aid as a percentage of the Medicare phy sician fee sc hedule, not to exc eed 100%, the payments will not ex ceed what Medicare would have paid. Payments to School-Based Wellness Centers shall be considered “preventive pediatric services” as per 42 CFR 433.139(b)(3)(i) for the purpose of applying third party billing requirements. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS DEPARTMENT OF INSURANCE Statutory Authority: 18 Delaware Code, Sections 311; 314; 29 Delaware Code, Section 10112 (18 Del.C. §§311; 314 & 29 Del.C. §10112) PUBLIC NOTICE 908 Procedures for Responding to Freedom of Information Requests INSURANCE COMMISSIONER KAREN WELDIN STEWART, CIR-ML hereby gives notice of intent to ado pt Department of Insurance Regulation 908 relating to requests from the public for information under the Freedom of Information Act. The docket number for this proposed amendment is 1379. The purpose of the proposed Regulation 908 is to establish procedures for providing information requested by the public and guaranteeing that information that is provided can be provided and, if so, is provided in a timely fashion. The text of the proposed regulation is reproduced in the September 2010 edition of the Delaware Register of Regulations. The text can also be viewed at the Dela ware In surance Commission er’s we bsite at: http:// www.delawareinsurance.gov/departments/documents/ProposedRegs/ProposedRegs.shtml. The Department of Insurance does not plan to hold a public hearing on the proposed changes. Any person can file written comments, suggestions, briefs, compilations of data or other materials concerning the proposed amendments. Any written submission in response to this notice and relevant to the proposed changes must be received by th e De partment of Insur ance no later th an 4:00 p .m., Monday October 4 , 20 10, and sho uld b e addressed to Mitch Crane, Esquire, Delaware Department of Insurance, 841 Silver Lake Boulevard, Dover, DE 19904, or sent by fax to 302.739.2021 or email to mitch.crane@state.de.us. 908 Procedures for Responding to Freedom of Information Requests 1.0 Definitions The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise: “Commissioner” means the Commissioner of the Delaware Insurance Department. “Department” means the Delaware Department of Insurance. “FOIA” means The Freedom of Information Act as established pursuant to Chapter 100 of Title 29 of the Delaware Code Annotated. “FOIA Coordinator” is defined as an individual designated by a public body to accept and process requests for public records under the act. The Commissioner shall designate the individual who shall be the FOIA Coordinator. The FOI Coordinator may appoint Assistant FOIA Coordinators to accept and process FOIA requests. “Public re cord” is information of a ny kind , owned, made, u sed, r etained r eceived, produced, composed, drafted or otherwise compiled or collected by the Department relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which su ch information is stored, recorded or reproduced and not protected from disclosure by law. “Writing” is defined as “handwriting, typewriting, printing, photo stating, photographing, photocopying, and e very othe r me ans of re cording, an d includ es lette rs, wo rds, pictur es, sou nds, or symbols, or combinations ther eof, an d p apers, map s, mag netic or p aper t apes, pho tographic film s o r p rints, microfilm, microfiche, magnet ic or punched cards, discs, drums, or other means of rec ording or retaining meaningful content. “Written request” is defined as “a writing that asks for information, and includes a writing transmitted by facsimile, electronic mail, or other electronic means.” DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 2.0 Purpose The purpose of this Regulation is t o set forth the policy an d procedures for responding to r equests from the public for information as set forth in 29 Del.C. Chapter 100. 3.0 Records Request, Response Procedures and Access 3.1 All FOIA Request s s hall be made in w riting to the De partment, a ddressed to: FOIA Coo rdinator, Department of Insurance, 841 Silver Lake Blvd., Dover, DE 19904. All FOIA Requests shall specifically identify in writing the records sought for review in sufficient detail to enable the Department to locate the records with reasonable effort. The Department shall provide reasonable assistance to the public in identifying and locating records to which they are entitled access. 3.2 The Department shall respond, in writing, within ten working days of the receipt of a FOIA Request. Such response shall specify the name and telephone number of a contact person with respect to the FOIA Request and shall state whether: 3.2.1 the Department will permit inspection of the public records; 3.2.2 the Department requires additional time beyond the 10 business days for circumstances to include but not limited to, the request is for voluminous records, requires legal advice, for the public record is in storage or archived. In the event the Department is u nable to make the requested public records available for inspection with the 10 business day period, the Department shall provide an expected time at which they will be made available; or 3.2.3 if it does not permit such inspection, the reason or reasons for such refusal. 3.3 Prior to disclosure, records will be reviewed to ensure that those records or portions of records deemed n on-public pur suant to 29 Del.C. §10002(g) ar e re moved. In r eviewing the r ecords, all documents shall be considered public records unless subject to one of the exceptions set forth in 29 Del.C. §10002(g). 3.4 After receiving the response of the Department to a FOIA Request, the requesting party shall contact the person specified in the written response thereto to schedule a mutually convenient date, time and place for the inspection of the public records. 3.5 All FOIA Requests shall be coordinated by the FOIA Coordinator. 3.6 The Department shall provide reasonable access for reviewing public records during regular business hours. Th e De partment shall make the r equested pu blic reco rds availa ble unless th e re cords or portions of the records are determined to be excluded from the definition of a “public record” pursuant to 29 Del.C. §10002(g). 4.0 Fees 4.1 Administrative Fees 4.1.1 Charges for administrative fees include: 4.1.1.1Staff time associated with processing FOIA Requests will include: 4.1.1.1.1 Locating and reviewing files: 4.1.1.1.2 Monitoring file reviews; 4.1.1.1.3 Generating computer records (electronic or print-outs); 4.1.1.1.4 Review of request by legal counsel 4.1.1.1.5 Other work items as necessary per request. 4.1.2 Calculation of Administrative Charges: 4.1.2.1 Administrative charges will be billed to the requestor per quarter hour. These charges will be billed a t the cu rrent, ho urly p ay gr ade r ate, plus b enefits ( pro-rated fo r q uarter hours increments) of the pers onnel performing the s ervice. Administrative c harges w ill be in addition to any copying charges. 4.1.2.1 Appointment Re scheduling/Cancellation – Re questors w ho d o n ot re schedule or ca ncel appointments to view files at least one full business day in advance of the appointment may be subject to the administrative charges incurred by the Department in preparing the DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS requested records. The Department shall prepare an itemized invoice of these charges and mail to the requestor for payment. 4.2 Photocopying Fee s – The follo wing ar e cha rges for ph otocopies of public r ecords mad e by Department personnel: 4.2.1 Standard Sized, Black and White Copies. 4.2.1.1 The first 20 pages of standard sized, black and white copied material shall be provided free of charge. The charge for copying standard sized, black and white public records for copies over and above 20 shall be $0.25 per copied sheet. This charge applies to copies on the following standard paper sizes: 4.2.1.1.1 8.5” x 11” 4.2.1.1.2 8.5” x 14” and 4.2.1.1.3 11” x 17” 4.2.2 Oversized Copies/Printouts. 4.2.2.1 The charge for copying oversized public records shall be as follows: 4.2.2.1.1 18” x 22” $2.00 each 4.2.2.1.2 24” x 36” $3.00 each 4.2.3 Color Copies/Printouts 4.2.3.1 The charge for standard sized, color copies or color printouts shall be $1.00 per sheet. This charge applies to copies on the following standard paper sizes: 4.2.3.1.1 8.5” x 11” 4.2.3.1.2 8.5” x 14 and 4.2.3.1.3 11” x 17” 4.2.4 Microfilm and /or Microfiche Printouts. 4.2.4.1 Microfilm a nd/or micr ofiche p rintouts, made by De partment per sonnel o n st andard size d paper, will be calculated at $0.50 per printed page. 4.3 Electronically Generated Records. 4.3.1 Charges for copying records maintained in an electronic format will be ca lculated by the material costs involved in generating the copies (including, but not limited to: magnetic tape, diskette, or compact disc costs) and administrative costs. 4.3.2 In th e ev ent t hat r equests f or records maintained in an ele ctronic for mat ca n be electro nically mailed to the requestor, only the administrative charges in preparing the electronic records will be charged. 4.4 Payment 4.4.1 Payment for copies and/or admini strative charges will be due at the time copies are released to the requestor. 4.4.2 The Department may require pre-payment of copying and administrative charges prior to mailing copies of requested records. 5.0 Effective Date of this Regulation. This Regulation will become effective 10 days after being published as a final regulation. Any and all FOIA Requests currently in process at the time of adoption will be subject to this Regulation. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL DIVISION OF AIR AND WASTE MANAGEMENT Statutory Authority: 7 Delaware Code, Chapter 60 (7 Del.C., Ch. 60) 7 DE Admin. Code 1138 1138 Emission Standards for Hazardous Air Pollutants for Source Categories PUBLIC NOTICE SAN # 2010-17 1. Title of the Regulations: Amendment to Regulation 1138 Emission Standards for Hazardous Air Pollutants for Source Categories 2. Brief Synopsis of The Subject, Substance and Issues: Under Section 112(k) of the 1990 Clean Air Act Amendments, Congress mandated that the EPA identify 30 or more hazardous air pollutants (HAPs) that posed the greatest threat to public health in urban areas, to identify the small area sources that emit those HAPs, and to develop regulations to reduce the emissions of those HAPs. In 1999, the EPA identified 33 HAPs that posed the greatest threat to public health and has, since that time, identified over 60 new area source categories for which regulations are being developed. On December 2, 2009, the EPA promulgated another of these area source category standards that will affect existing and fu ture Delaware sources, th e ar ea so urce standard for asp halt p rocessing a nd asphalt r oofing products manufacturing operations under 40 CFR Part 63 Subpart AAAAAAA. Delaware is proposing to amend Regulation 1138 by adding a new Section 16 that covers asphalt processing and asphalt roofing products manufacturing operations. The purpose of this proposed amendment is to pr ovide increased protection for Delaware citizens against a variety of potential adverse health effects linked to a long term exposure to polycyclic aromatic hydrocarbons, PAHs. Lung cancer is the primary concern. Seven of the PAHs have been classified as Group B2, probable human carcinogens by EPA. The proposed amendment will provide greater consistency between Delaware’s air toxics standards for these types of operations and the recently promulgated federal standard (40 CFR Part 63 Subpart AAAAAAA) on which this propos ed amendment is heavily based. In addition, this amendment proposes to include a more health protective requirement that currently exists in similar area source air toxics standards found in Regulation 1138 and other Delaware air regulations. 3. Possible Terms of the Agency Action: None 4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT: 7 Delaware Code, Chapter 60 5. Other Regulations That May Be Affected By The Proposal: None 6. Notice of Public Comment: Statements a nd te stimony ma y be presented eithe r o rally or in wr iting a t a pu blic he aring to be he ld on Wednesday, September 22, 2010 beginning at 6:00 PM in the DNREC’s Grantham Lane Conference Room, 715 Grantham Lane, New Castle, DE. In terested parties may submit comments in w riting to: J im Snead, DNR EC Division of Air Quality, 715 Grantham Lane, New Castle, DE 19720. 7. Prepared By: James R. Snead (302) 323-4542 james.snead@state.de.us August 3, 2010 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 1138 Emission Standards for Hazardous Air Pollutants for Source Categories *Please Note: Due to th e size of the proposed regulation, it is not being published here. A cop y of th e regulation is available at: 1138 Emission Standards for Hazardous Air Pollutants for Source Categories DEPARTMENT OF STATE DIVISION OF HISTORICAL AND CULTURAL AFFAIRS Statutory Authority: 30 Delaware Code, Section 1815(b) (30 Del.C. §1815(b)) 100 Historic Preservation Tax Credit Program PUBLIC NOTICE Title: Amendments to the Regulations Governing the Historic Preservation Tax Credit Brief Synopsis: The Histor ic Pre servation Tax Cred it Act (3 0 Del.C. Ch. 1 8, Su bch. II ) was first en acted by th e Gen eral Assembly in 2001 and was amended in 2002, 2003, 2004, and 2005. Program regulations were adopted on July 11, 2002 (6 DE Reg. 108 published 07/01/02), and were amended on July 11, 2004 (8 DE Reg. 194 published on 07/01/04) and on January11, 2005 (8 DE Reg. 1031 published 01/01/05). The 2010 amendments to the legislation provide for a ten-year extension to the Historic Preservation Tax Credit Act, sets aside a portion of the annual cap for projects which will receive a credit award under $300,000 and provides for the Delaware Department of State to report a nnually to the Governor a nd th e Le gislature. Th e pu rpose o f the followin g pr oposed regulatory amendmentsis to implement the code changes of 2010 and to clarify various sectionsof the regulations.The proposed amendments address the changes to the way in which credits are awarded under this program in section 7.6, and address the new reporting requirements in §10.0. As to the clarification of the regulations, the proposed amendments modify 31 sections of the regulations (1.0, 3.0, 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 7.0, 7.1, 7.2, 8.2, 8.3, 9.1, 9.3, 9.4), and create nine new sections of the regulations (4.5, 5.4, 5.9, and 7.1- 7.6). The Historic Preservation Tax Credit Act is designed to promote community revitalization and redev elopment through the rehabilit ation of his toric property by providing t ax c redits for expenditures made to rehabilitate any certified historic property. Statutory Basis or Legal Authority to Act: 30 Del.C. Ch.18, Subch. II, §1815(b) Other Regulations that may be Effected by the Proposal: The State Bank Commissioner and the Division of Revenue may adopt regulations or issue guidelines for tax elements of the Historic Preservation Tax Credit Act. Notice of Public Comment: PLEASE T AKE NOTICE , p ursuant to 29 Del.C ., Ch. 101, the Division of His torical and Cultural Af fairs proposes to ame nd rules and regulations pursuant to its authority under 30 Del.C. §1815(b). The Division will receive and consider all written comments on the proposed rules and regulations related to implementation of amendments to the Historic Preservation Tax Credit Act. Submit comments to the Division in care of Timothy A. Slavin, Director, Division of Historical and Cultural Affairs, 21 The Green, Dover, DE 19901. The final date to submit comments is September 30, 2010. Anyone wishing to obtain a copy of the proposed amendments to the rules and DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS regulations should notify Timothy A. Slavin at the above address or call 302-736-7400. This notice will be published in two newspapers of general circulation. Prepared by: Timothy A. Slavin, Director 302-736-7400 September 15, 2010 100 Historic Preservation Tax Credit Program 1.0 Scope With permission of the property owner, a A person or business entity that owns and who rehabilitates a certified historic property may receive apply for a credit against personal Delaware State income tax or bank franchise tax liabilities according to procedures and criteria established in these regulations and those that may be promulgated by the Division of Re venue or the State Bank Commissioner. Any person eligible for t ax cre dits u nder this Chapter, e xcept a p erson e ngaged in a resident cur ator relationship, may transfer, sell or assign any or all unused credits. 6 DE Reg. 108 (7/1/02) 8 DE Reg. 1031 (1/1/05) 2.0 Statutory Authority These regulations are created pursuant to 30 Del.C. Ch. 18, Subch. II, which authorizes the Division of Historical and Cultural Affairs to promulgate regulations for implementation of the provisions of this subchapter ( except t ax-related pr ocedures) including, bu t no t limited to , setting of fee s and development of st andards for the re habilitation of eligible historic properties . The s ubchapter further authorizes the Divis ion of Histori cal and Cultur al Af fairs to pr omulgate the a pplication a nd for ms governing participation in the certification program. 3.0 Definitions The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise: “Act” shall means the 30 Del.C. Ch. 18, Subch. II. “Application” shall means the Delaware Historic Preservation Tax Credit application that shall consist of four parts, as follows: the Reques t for Certification of Historic Property (Part 1); the Request for Certification of Rehabilitation (Part 2); the Request for Certification Certificate of Completion (Part 3), and the Request for Credit Award. “Certified historic property” or “qualified property” shall means a property located within the State of Delaware that is: • individually listed in the National Register of Historic Places; or • located in a historic district listed in the National Register of Historic Places and certified by the United States Secretary of the Interior as contributing to the historic significance of that district; or • individually designated as a historic property by local ordinance and certified by the Delaware State Historic Preservation Office as meeting the criteria for inclusion in the National Register of Historic Places; or • located in a historic district set apart or registered by a local government, which historic district is certified by the Delaware State Historic Preservation Office contributing as meeting the criteria for inclusion in the National Register and which property contributes to the historic significance of such area, and certified by the Delaware State Historic Preservation Office as meeting the criteria for inclusion in the National Register historic district. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS "Certification of Completion", or "Certificate of Completion " shall means the certificate issued by the Dela ware S tate Histo ric Pr eservation Officer attesting that the certified rehabilit ation, or , if applicable, phase thereof, has been completed, and that the documentation of qualified expenditures and project plans that would be required in order to qualify for tax credits under Section 47 of th e Internal Revenue Code (26 USC 47) (whether or not such project would be eligible for such federal tax credit) has been obtained. “Certified rehabilitation” shall means rehabilitation of a certified historic property, or portion thereof, that ha s b een ce rtified b y t he De laware State Historic Pr eservation Of ficer as a subst antial rehabilitation, and is in conformance with the Secretary of the Interior’s Standards for Rehabilitation (36 CRF, part 67) or such other standards as the Delaware State Historic Preservation Office shall from time to time adopt. “Credit award” shall means the amount of qualified expenditures as determined by the State Office as part of the Part 2 approval multiplied by the appropriate percentage as determined in 30 Del.C. §1813. “Delaware State Historic Preservation Officer” shall means the person designated and appointed in accordance with National Historic Preservation Act of 1966, as amended (16 USC §470a(b)(1)(a A)). The Delaware State Historic Preservation Officer is an appointed position held by the Director, Division of Historical and Cultural Affairs. “Federal tax credit” shall means the Federal Rehabilitation Tax Credit as defined in the United States Tax Code, Title 26, Subtitle A, Chapter 1, Subchapter A, Part IV, Subpart E, Section 47 (26 USC 47). “Fiscal Year” shall means the State of Delaware’s fiscal year. “National Register of Historic Places” or “National Register” shall means the National Register of districts, sites, buildings, structures, and objects significant in American his tory, ar chitecture, archaeology, engineering, and culture that the United States Secretary of the Interior is authorized to expand and maintain pursuant to Section 101(a)(1) of the National Historic Preservation Act of 1966, as amended (16 USC §470(a)(1)(A)). "Office" or "State Office" shall means the Delaware State Historic Preservation Office, which is a part of the Division of Historical and Cultural Affairs. "Owner-occupied h istoric pr operty" s hall mea ns an y ce rtified hist oric pr operty, or an y po rtion thereof, which is owned by a taxpayer and is being used, or within a reasonable period will be used, by such t axpayer a n ap plicant as the ap plicant’s t axpayer's pr incipal r esidence. Such p roperty may consist of p art of a multiple dwelling or multiple purpose building or series of bu ildings, including a cooperative or condominium. If only a portion of a building is used as the principal residence, only those q ualified e xpenditures th at ar e properly a llocable to such po rtion sh all be eligible under this subchapter to apply for tax credits calculated at the percentage available to owner-occupants. "Person" or “applicant” shall means any individual; any form of com pany or corporation which is lawful within the State of Delaware (including limited liability companies and S corporations) whether or not for profit; any form of partnership which is lawful within the State of De laware (including limited liability partnerships) whether or not for profit; any trust or estate; and any lawful joint venture. "Person" or “applicant” shall also mean any governmental entity; or any pass-through entity or person under a lease contract for five years or longer. “Phased re habilitation” shall me ans any certifi ed rehabilit ation of a c ertified historic property reasonably expected to be completed in two o r more distinct stages of development as more fully described in Treasury Regulation 1-48-12(b)(v) or any successor provision. "Property" shall means real estate and shall include any building or structure, including multiple-unit structures. “Qualified e xpenditure” s hall mea ns an y amount p roperly expe nded by a person for the cer tified rehabilitation of a certified historic property, but shall not include: • acquisition of real property or acquiring an interest in real property, or any costs associated with the acquisition of the property; • any addition to an existing structure except where the combined square footage of all additions is 20% or less than the total square footage of the historic portion of the property and DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS each such addition is approved by the Delaware State Historic Preservation Officer, pursuant to federal guidelines, as: • preserving the character-defining features of the certified historic property, • adequately differentiating the new construction from the existing structure, and • complying with requirements regarding safety and accessibility in a manner reasonably designed to minimize any adverse impact on the certified historic property; • sitework, paving or landscaping costs which exceed in excess of 10% of the total qualified expenditures; • sales and marketing costs; or • an expenditures not properly charged to a capital account, including, in the case of owner- occupied property, an expenditures that would not properly be charged to a capital account where the owner person using such property is in a trade or business. “Reasonable per iod” sh all m eans that an owner must occupy the rehabilit ated property as their principal residence within six months of the issuance of the Certificate of Completion. The State Office, in its sole discretion, may offer one extension, not to exceed three months, for cause. “Resident Cu rator” shall me ans a per son who ha s en tered into a contractual ag reement with the owner of a qualified certified pr operty in which the pe rson agrees to p ay for full restoration o f the owner’s q ualifying property in ex change for a life te nancy in the pr operty without remunerative compensation to the owner for the life tenancy. “Substantial re habilitation” or “ full re storation” shall mea ns rehabilit ation of a certified historic property for which the qualified expenditures, during the 24-month period, or the 60-month period for a phased rehabilitation, selected by the taxpayer and ending with or within the taxable year applicant exceeds: • for income-producing property, and non-income producing property other than owner-occupied historic property, the current standard required by Section 47(c)(1)(C) of the Internal Revenue Code (26 USC 47(c)(1)(C)); and • for owner-occupied historic property, non-income producing property, or property under contract with a resident curator, $5,000. “Taxpayer” shall means any person, as defined in this section, and shall in clude any in dividual or corporation taxable under Title 5, or taxable under either 30 Del.C. Ch. 11, or 30 Del.C. Ch. 19. 6 DE Reg. 108 (7/1/02) 8 DE Reg. 194 (7/1/04) 8 DE Reg. 1031 (1/1/05) 4.0 Procedures for Certification of Historic Property 4.1 A t axpayer With pe rmission on the pr operty owne r, an ap plicant m ay re quest submit a Part 1 application to the S tate Office requesting that the State Historic Preservation Officer certify that a property in a National Register listed or locally designated historic district be certified by the Delaware State Historic Preservation Officer as is a certified historic property by filing the Part 1 application with the S tate Office as de fined in Section 3.0 of this re gulation. The ap plicant sh all file tThe Par t 1 application shall be filed on standard forms available from developed by the State Office. 4.2 The State Office shall not process an incomplete Part 1 application w ill not be processed until all required application information has been is received. Where adequate documentation is not provided, the S tate Office will shall notify t he t axpayer ap plicant of the ad ditional information ne eded to undertake or complete the review. 4.3 The Delaware State Historic Preservation Officer shall determine whether the property for which a complete Part 1 application is received meets the definition of certified historic property and will shall notify the taxpayer applicant of the decision. 4.4 If a property is in dividually listed in the National Register, submission of a Pa rt 1 ap plication is n ot required. The na me of the his toric pr operty and its date of listin g in the Na tional Register must be provided in the Part 2 application. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 4.5 The Delaware State Historic Preservation Officer may certify as historic any property for which an applicant has ob tained a Pa rt 1 cer tification fro m th e fed eral go vernment p ursuant to 36 CFR 6 7. Under this provision, an applicant shall file only the cover page of the Delaware Part 1 application. 6 DE Reg. 108 (7/1/02) 8 DE Reg. 1031 (1/1/05) 5.0 Procedures for Certification of Rehabilitation 5.1 An applicant taxpayer may request a determination by the Delaware State Historic Preservation Officer that sub mit a Part 2 app lication to the S tate Of fice re questing th at th e Delawar e S tate Histo ric Preservation Officer determine if a proposed rehabilitation plan meets the criteria for certification by filing a Part 2 application with the State Office as a certified rehabilitation as defined in Section 3.0 of this regulation. The applicant shall file tThe Part 2 application shall be filed on standard forms available from developed by the State Office. 5.2 An applicant taxpayer must shall submit Part 1 of the application prior to, or with, Part 2. The State Office shall not process the Part 2 application will not be processed until an ad equately documented and approved Part 1 application, where required as outlined in Section 4.0 4.4 of these regulations, is on file. 5.3 The State Office shall not process an incomplete Part 2 app lication will not be processed until all required application information is has been received. Where adequate documentation is not provided, the S tate Office will shall notify t he t axpayer ap plicant of the ad ditional information ne eded to undertake or complete review. 5.4 Applicants may submit subsequent Part 2 applications for the same property as long as the following criteria are met: • For certified properties held for income (depreciable properties, as often as the project work qualifies for income tax credits under Section 47(c)(1)(C) of the Internal Revenue Code (26 USC 47(c)(1)(C)) • For all other certified properties, no sooner than 24 months from the date of the prior Part 2 approval as long as other program requirements have been met. 5.4 5.5 An applicant taxpayer requesting approval of a phased rehabilitation plan shall provide the State Office with a description of the phases and their completion dates when submitting the Part 2 application. The Delaware S tate Historic Preservation Of ficer shall w ill no tify the app licant t axpayer i f the p hased rehabilitation plan is approved. The final completion date for a phased rehabilitation is binding unless the ap plicant t axpayer reques ts a c hange in writing. For a phased rehabilit ation, the applicant is allowed up to taxpayer has 60 months to meet the substantial rehabilitation test. 5.56 The Delaware State Historic Preservation Officer shall determine whether the proposed rehabilitation for which a complete application is received under Section 5.1 of this regulation meets the definition of a certified rehabilitation and shall send the taxpayer applicant notice of the determination. The State Office may require modifications to the plan in order to meet the definition of a certified rehabilitation. 5.6 A Request for Credit Award application must be submitted with the Part 2 application. A taxpayer must also provide cost estimates of qualified expenditures prepared by a licensed architect, engineer, or contractor or a certified construction cost estimator. 5.7 The amount of tax credit applied against the qualified expenditures in accordance with 30 Del.C. §1813 shall represent the credit award. The cost esti mate supplied by the taxpayer in acco rdance with Section 5.6 will used to determine the credit award for approved Part 2 applications. 5.8 Credits will be awarded in chronological order based upon the date and time on which each application receives Part 2 approval from the State Office. The State Historic Preservation Officer shall notify the taxpayer of the amount of the credit award. 5.97 In the alternative, Tthe Delaware State Historic Preservation Officer may issue a Part 2 approval to any applicant taxpayer who has obtained a Part 2 certification from the federal government pursuant to 36 CFR 67. Under this provision, an applicant taxpayer shall must file only the cover page of the State of DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS Delaware Part 2 application cover form as well as the information required under Section 5.6 of these regulations. 5.108 All Applicants taxpayers must begin construction on the appr oved certified rehabilitation plan within one year of receiving the Part 2 approval. If construction on the rehabilitation plan is not substantially commenced and diligently pursued within this time period, the applicant taxpayer will shall forfeit any assigned credit award. the awarded credits and the Any forfeited tax credits may awarded to such taxpayer will become available for award to other applicants taxpayers. Substantially commenced and diligently pur sued shall m eans that th e a pplicant can d emonstrate that at a min imum, 25% of the estimated rehabilitation costs was must have been expended within the first year after the tax credits are a ssigned. The State Office r eserves the right to obtain d ocumentation from the applicant supporting the expenditure. 5.119 The p roject may b e inspected by the Dela ware S tate Historic Preservation Officer, or his/her designated representative, may inspect the pr operty to determine if the work is consistent with the approved certified rehab ilitation plan, and if the project has substantially c ommenced and is being diligently pursued. 5.10 The applicant may request that the State Office review changes to the project plan after the Part 2 application is approved. The Delaware State Historic Preservation Officer shall determine whether the proposed change meets the definition of a certified rehabilitation and shall send the applicant notice of the determination. 6 DE Reg. 108 (7/1/02) 8 DE Reg. 1031 (1/1/05) 6.0 Procedures for Certification of Completion 6.1 Upon completion of a certified the rehabilitation work outlined in the Part 2 application, or an approved project phase thereof, the taxpayer applicant must submit to the State Office a Part 3 applic ation with required documentation supporting a ny con ditions in th e Pa rt 2 ap plication a pproval, the for m(s) required in the Division of Revenue’s regulations indicating the name of the taxpayer who will claim the tax credit, and a final accounting of qualified expenditures, to the Delaware State Historic Preservation Office. 6.2 The State Office shall not process aAn incomplete Part 3 applic ation will not be processed until all required application information is has been received. Where adequate documentation is not provided, the S tate Office will shall notify t he t axpayer ap plicant of the ad ditional information ne eded to undertake or com plete the re view. Th e S tate Of fice ma y in spect the co mpleted pr oject ma y be inspected by the Delaware State Historic Preservation Officer, or his/her designated representative, to determine if the work meets the definition of a certified rehabilitation. 6.3 Upon approval by the S tate Office that the completed rehabilitation, or an approved ph ase thereof, meets the definition of a certified rehabilitation, the State Office shall submit the documentation of qualified expenditures to the Division of Revenue and request a determination of the value of the tax credit fo r the completed pr oject or a n ap proved p hase the reof, me ets th e de finition of a cer tified rehabilitation, the Delaware State Historic Preservation Officer shall issue a Certificate of Completion for the project, or phase thereo f. For approv ed phased rehabilit ations, each phase must receive a Certificate of Completion in order for the overall project to be considered a certified rehabilitation. 6.4 Upon receipt from the Division of Revenu e of the certification of the valu e of the t ax credit for the project, or an approved phase thereof, the Delaware State Historic Preservation Officer shall issue a Certificate of C ompletion to the taxpayer. Fo r approved phased rehabilit ations, each phase must receive a Certificate of Completion indicating that each phase is a certified rehabilitation in order for the overall project to be considered to be a certi fied rehabilitation. After a project, or phase thereof, receives its Certificate of Completion, the State Office shall submit the documentation outlined in 6.3 of these regulations to the Division of Revenue, and request a determination of the value of the tax credit for the completed project or an approved phase. For all p rojects in which the tax credits are to be applied against franchise taxes, and at other times as requested by the Division of Revenue, the forms and documentation will also be submitted to the State Bank Commissioner’s Office. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 6.5 The Division of Revenue will return the forms certifying the value of the tax credit for the project, or an approved phase thereof, to the State Officer which shall ransmit the Certificate of Completion and the Revenue form(s) to the taxpayer who will claim the tax credits. 6.56 In the caseof approved phased projects, a single rehabilitation project may receive morethan one Certificate of Completion. may be awarded to a single rehabilitation project. Credits issued to the initial assignee, or in the case of a tax-exempt assignee, to the first taxable transferee after the associated phase completion, shall b e ar e su bject to r evocation an d r epayment to th e Dela ware Division of Revenue or the Office of the State Bank Commissioner if, under regulations issued by the State Office, a phased rehabilit ation is not completed by the agr eed upon comple tion date indicating that the applicant for the credit award is unable or unwilling to complete it; or in the event that the project does not meet the certification requirements previously agreed to with the State Office. 6.6 In no event shall the credit claimed by a taxpayer exceed the approved Part 2 credit award. 6 DE Reg. 108 (7/1/02) 7.0 Procedures for Requesting a Credit Award 7.1 An applicant shall request a credit award by filing a Request for Credit Award application with the State Office. The Request for Credit Award application may be submitted at the same time or subsequent to the submission of the Part 2 application, but no latter than simultaneously with the Part 3 application. 7.2 The applicant shall support the amount of qualified expenditures indicated on the Request for Credit Award by submitting a cost estimate prepared by a licensed architect or engineer; an accountant; a contractor or a certifie d c onstruction c ost es timator. Where the rehabilit ation work is complete, documentation of cost s may be pr epared b y a lice nsed ar chitect o r e ngineer; an a ccountant; a contractor or a cer tified con struction cost estimator; or ma y be do cumented by p aid in voices or cancelled checks for contractual work; and store invoices for material purchases. The State Office may prescribe the fo rmat in which the docum entation o f q ualified expe nditures is subm itted. T he cost estimate is verified by and may be adjusted by the State Office if documentation is inadequate or costs are disallowed. 7.3 The S tate Of fice will not process an incomplete Re quest for Credit A ward application until all documentation as r equired in Section 7 .3 o f the r egulations is received. Wh ere adequate documentation is not pr ovided, the State Office shall notify the applicant of the additional information needed to undertake or complete the review. 7.4 The credit award is calculated as a percentage of the qualified expenditures and will be rounded down to the nearest whole dollar. The criteria for applying the percentages to establish the credit award are: • For depreciable (income-producing) certified properties, 20% of qualified expenditures; • For depreciable certified properties where the whole or a part, receives low income housing credits, 30% to be applied to that portion of the square footage; • For all other certified properties, 30% except where an owner would meet HUD established low income criteria, then 40%. 7.5 The State Historic Preservation Officer shall notify the applicant of the amount of the credit award. The Delaware State Historic Preservation Officer will consider increasing the credit award where there has been an increase in qualified costs of greater than 5% of the total. 7.6 Each fiscal year, $2 million of the $5 million assigned to make credit awards under these regulations is reserved for projects receiving a credit award of not more than $300,000. After April 1, any unassigned portion of the $2 million is released to be available for credit awards to any eligible project. 7.0 8.0 Fees for Processing Rehabilitation Certification Request 78.1 The fee for review of rehabilit ation work for project s where th e qualified ex penditures are over $100,000 is $250 for each separate application. The fee from a single taxpayer for multiple projects submitted at the same time shall not exceed $2,500. Final action will not be taken on any application until the appropriate remittance is received. No fee will be charged for rehabilitation projects where the qualified expenditures are under less than $100,000. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 78.2 The applicant shall submit the fee, where applicable, must be submitted with the Part 3 application. For phased projects, the applicant shall submit the fee must be submitted with the first Part 3 submitted. All checks shall be made payable to the State of Delaware. 6 DE Reg. 108 (7/1/02) 8 DE Reg. 1031 (1/1/05) 8.0 9.0 Requirements for Resident Curator Program Properties 89.1 Curatorship property is subject to periodic inspection by the State Office during the tax years in which the credit is applicable. 89.2 Improvements to cu ratorship property mu st shall be co mpleted wi thin fiv e y ears fr om t he date of execution of the contract between the owner and the resident curator. 89.3 Curatorship property may shall not be used for commercial purposes. 8 DE Reg. 194 (7/1/04) 9.0 10.0Administrative Review 910.1 A taxpayer whose application has been is disapproved by the Delaware State Historic Preservation Officer under these regulations may file a written request for review with the Secretary of State or the Secretary’s designee within 60 days after the notice of disapproval is sent. 910.2 The Secretary of State or the Secretary’s designee shall review the request within 60 days after receipt of the request. If the Secretary of State or the Secretary’s designee determines that the a pplication filed meets the standards set forth in these regulations the application shall be considered approved. If the Secretary of State or Secretary’s designee determines that the application filed does not meet the standards set forth in these regulations, the application shall be disapproved. The Secretary of State or Secretary’s designee shall promptly notify the taxpayer of the Secretary’s determination. 910.3 A t axpayer wh ose ap plication has be en is disap proved b y the Secretary of S tate may ap peal th at action in accordance with the Administrative Procedures Act, 29 Del.C. §10101 et. seq. 910.4 An appellant who has exhausted exhausts all administrative remedies shall be is entitled to judicial review in accordance with 29 Del.C. Ch. 101, Subch. V of the Administrative Procedures Act. 6 DE Reg. 108 (7/1/02) 11.0 Reporting Requirements 11.1 Annually, on or before January 31st, the Delaware State Historic Preservation Officer shall issue an annual report on the restoration and rehabilitation status of all t ax credit projects approved in the previous calendar year. 11.2 The annual report shall include a list of all tax credit projects issued in previous years for which the tax credits have not been claimed. 11.3 The annual report will be distributed to the Governor and the General Assembly. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS DIVISION OF PROFESSIONAL REGULATION GAMING CONTROL BOARD Statutory Authority: 28 Delaware Code, Section 1122 (28 Del.C. §1122) 10 DE Admin. Code 101 101 Regulations Governing Bingo PUBLIC NOTICE A. Type of Regulatory Action Required Amendment to Existing Regulations B. Synopsis of Subject Matter of the Regulation The Delaware Gaming Board will seek public comments on the issue of whether its current Rule 1.0 in 10 DE Admin. Code 101 should be amended. The rule relates to the definition of “cookie jar bingo” and to the manner of playing cookie jar bingo games. The Board proposes to change the definition of “Cookie Jar Bingo” as it appears therein, to make it clear that the fee to enter to play a cookie jar bingo game must be separately collected and may not be included in any other fees. Persons wishing to present their views regarding this matter may do so in writing by the close of business on or before October 1 to: Delaware Gaming Control Board, 861 Silver Lake Boulevard, Cannon Building, Suite 203, Dover, DE 19904. A copy of these regulations is available from the above address or may be viewed at the Division of Professional Regulation business office at the same address. C. Summary of Proposal Currently, the definition of “cookie jar bingo” involves a chance for a player to pay a fee into a jar or container to obtain a chance to win the funds contained therein. The Board wishes to clarify and make it clear that this fee must be a separately collected fee. 101 Regulations Governing Bingo 1.0 Definitions “Bingo” A game of chance played for prizes with cards bearing numbers or other designations, five or more in one line, the h older cover ing numbers as ob jects similarly nu mbered ar e dr awn from a receptacle an d the gam e be ing won by the p erson who fir st cover s a pr eviously de signated arrangement of numbers on such a-card. “Bingo Statute” The statutory law concerning bingo, as contained in 28 Del.C., §1101 et. seq. “Board” The Delaware Gaming Control Board. “Color Coded” A different color for each of the five letters of the word "BINGO." “Cookie J ar Bingo” A ga me of chan ce in wh ich player s pay a set fe e into a cookie jar or other container and receive a number which entitles the player to a chance to win the total funds in the cookie jar or container. At the start of the event, a bingo number shall be drawn which shall serve as the “cookie jar number.” That number shall be posted for all players to see. During the games played on that occasion, if a player achieves bingo when the cookie jar number is drawn, the player shall win the funds in the cookie jar or container. If no one achieves bingo when the cookie jar number is drawn, the funds in the jar shall not be awarded. An organization may not otherwise offer a cookie jar game and may not designate the last game of the night or any other particular game as a cookie jar game at which the funds will be awarded w ithout a person achievi ng bingo when the c ookie jar number is drawn. The fee to play a cookie jar bingo game must be collected separately and such fee may not be included in the fee to play regular bingo games or in any other fee. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS Any a mounts in an y co okie ja r bingo g ames shall n ot be in cluded in any p rize money limit ations contained in these rules. An organization may not have more than two cookie jar bingo pots at any one time. The first jar must be awarded before a third jar can be started. If two cookie jar pots each contain the maximum amount of money allowed by law, the first jar must be awarded at the same event at which the second jar reaches the allowable maximum. If the first jar has not been awarded by the final game of the night, a special final bingo game of “full card” or “black out” bingo using a separate, single card, shall be played and the jar will be won by the first person who covers all spaces on their entire card. If at the beginning of an event when players pay their fee, one jar contains the maximum (up to $1,000) and the second jar would go over the maximum if the fees are added, the fees shall be held and not placed in the second jar at that time. When the first jar is then won, the second jar shall be filled to a total of the maximum and the remaining fee moneys shall be placed in a new jar. “Districts” Those districts mentioned in Article II, 917A of the Delaware Constitution. “Equipment” The receptacle and color coded numbered objects to be drawn from it, the master board upon which su ch objects ar e pla ced as dr awn, the car ds or sheets bea ring nu mbers or other designations to be co vered an d the o bjects used to co ver the m, th e bo ards or sig ns, h owever operated, used to announce or display the numbers or designations as they are drawn, public address systems, tables, chairs, and other articles essential to the operation, conduct and playing of bingo. “Game” The game of bingo. “Instant Bingo” A game of chance played with sealed or covered cards which must be opened in some fashion by the holder such that the cards reveal instantly whether the holder has won a prize. This type of game includes but is not limited to games commonly known as “rip-offs” or “Nevada pull- tabs.” “Member in Charge” A bona fide, active member of the "Qualified Organization" in charge of, and primarily responsible for the conduct of the game on each occasion. “Occasion” A sin gle ga thering or session at which a series of successive b ingo g ames (regular, special, or otherwise) is played, not to exceed forty (40) in number. “Proceeds” The gross income received from all activities eng aged in or on occasion when bingo is played, less only, such a ctual expenses incurred as ar e authorized in the Bingo Statute and these Rules and Regulations. “Qualified Orga nization” A vol unteer fire comp any, veterans organization, r eligious o r charitable organization, or fraternal society that is operated in a manner so as to come within the provisions of Section 170 of the U.S. Secretary of the Treasury. “Week” means a seven day period beginning on Sunday and ending on Saturday. 2 DE Reg. 1224 (01/01/99) 12 DE Reg. 357 (09/01/08) 13 DE Reg. 412 (09/01/09) 13 DE Reg. 1355 (04/01/10) 2.0 Applications For Bingo License 2.1 Original applications shall be filed upon: 2.1.1 the first application of an organization for a license; 2.1.2 after the first application and upon a subsequent change in the organization's charter or bylaws; or 2.1.3 in the event of a subsequent application after a prior refusal, suspension, or revocation by the Board. 2.2 Supplemental applications for bingo licenses shall be filed in all instances except those covered by the original application. All promotional give-away events, as defined under 28 Del.C. §1139(h)(2), must be listed o n a n a pplicant's application fo r licen sure, giving the d ates of the pr omotional give-away events. If the event is not listed on the application, no promotional give-away event can be conducted. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 2.3 All original and supplemental applications shall be filed with the Secretary of the Board at least six (6) weeks prior to the date of the occasion. 2.3.1 An application must be submitted in advance of the proposed date of the function as to allow the Board to consider the application at two consecutive board meetings before deciding to approve or deny the application. 2.4 No applications (original or supplemental) shall be accepted unless the applicant, at the time of the filing, attaches a check or money order for the full amount of the fees payable by law for each occasion requested. In the event an application is refused by the Board, the application fees shall be refunded in full to the applicant. There shall be a license fee of $15 for each occasion on which bingo is conducted under a license. 2.5 No app lication sh all be received by the Commiss ion unles s it clearly show s that the applicant is located in and seeks to conduct the game in a district which has approved the licensing of bingo by referendum, and on premises owned or regularly leased by the applicant. If the applicant desires to conduct gam es on pr emises spe cially leased for t he o ccasion, a separate written re quest ther efor (together with supporting reasons) shall accompany the application. The Board reserves the right to accept or reject any application for the conduct of games on specially leased premises. Organization conducting a Function shall prepare and have available on the premises a list of all persons taking part in the management or operation of the Function. Such list shall be maintained as part of the licensees, records of the F unction and shall be made available to any member or agent of the Bo ard or law enforcement officer. 2 DE Reg. 1224 (1/1/99) 8 DE Reg. 531 (10/01/04) 12 DE Reg. 357 (09/01/08) 3.0 Bingo Licenses 3.1 Upon receiving an application, the Board shall make an investigation of the merits of the application. The Board shall consider the impact of the approval of any license application on existing licensees within the applicant's geographical location prior to granting any new license. The Board may deny an application if it concludes that approval of the application would be detrimental to existing licensees. 3.2 The Board may issue a license only after it determines that: 3.2.1 The app licant is du ly qu alified to conduct games under th e Sta te Constitution, sta tutes, an d regulations. 3.2.2 The me mbers of th e ap plicant who inten d to co nduct the bing o ga mes ar e b ona fid e active members of the ap plicant an d are pe rsons o f go od m oral ch aracter a nd have never be en convicted of a crime involving moral turpitude. 3.2.3 The bingo games are to be conducted in accordance with the provisions of the State Constitution, statutes, and regulations. 3.2.4 The proceeds are to be disposed of as provided in the State Constitution and statutes. 3.2.5 No salary, compensation or reward whatever will be paid or given to any member under whom the game is co nducted. If th e fin dings and d eterminations of the Boa rd are to th e ef fect that the application is approved, the Secretary shall execute a license for the applicant. 3.3 The license shall be issued. The original thereof shall be transmitted to the applicant. 3.4 If the findings and determinations of the Commission are to the effect that the application is denied, the Secretary shall so notify the applicant by certified mail of the reasons for denial, and shall refund any application fees submitted. 3.5 In the event of a request for an amendment of a license, the request shall be promptly submitted to the Commission in wr iting, and shall contain the name of the licensee, license number, and a co ncise statement of the reasons for requested amendment. The Commission may grant or deny the request, in its discretion, and may require supporting proof from the licensee before making any determination. The Commission may require the payment of an additional license fee before granting the request. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS The licensee shall be no tified of the Commission's action by appropriate communication, so that the licensee will not be unduly inconvenienced. 3.6 No license shall be effective for a period of more than one year from the date it was issued. 3.7 No license shall be effective after the organization to which it was granted has become ineligible to conduct bingo under any provision of Article II, §17A of the Delaware Constitution. 3.8 No lice nse s hall be e ffective after th e v oters in any Dis trict d esignated in Art icle II, §1 7A of th e Constitution have decided against bingo in a referendum held pursuant to that section and subchapter II of the Bingo Statute. 3.9 No bingo licensee licensed prior to July 14, 1998, shall conduct more than ten (10) bingo events in any calendar month and no bingo licensee licensed after the enactment of 71 Del. Laws 444 (July 14, 1998) shall conduct more than one (1) bingo event per week. A bingo licensee who was licensed prior to July,14, 1998 whose license lapses for six (6) months or more due to non-renewal or suspension or any othe r r eason sha ll, upon lice nsing thereafter, be conside red a licensee licen sed a fter the enactment of 71 Del. Laws 444 (July 14, 1998). 3.10 The license application shall contain a full and fair description of the prize and the appraised value of the prize. In lieu of submitting an appraisal, the applicant or licensee may submit the full retail value of the prize. In cases where the applicant or licensee purchases the prize from a third party, the Board may require that the ap plicant or licensee arrange for an independent appraisal of the value of the prize from a person licensed to render such appraisals, or if there is no person licensed to render such appraisals, from a person qualified to render such appraisals. 3.11 When bingo is conducted in conjunction with a carnival, festival, or similar event scheduled for more than one day, the game may be played up to every night of the event and shall be considered a single event for purposes of the rule allowing one event per week for those licensed after July 10, 1998 or ten events per month for those licensed before July 10, 1998. 2 DE Reg. 1224 (1/1/99) 3 DE Reg. 1692 (6/1/00) 4 DE Reg. 334 (8/1/00) 13 DE Reg. 412 (09/01/09) 13 DE Reg. (01/01/10) 4.0 Conduct of Bingo 4.1 The officers of a licensee shall designate a bona fide, active member to be in charge of and primarily responsible for the conduct of the ga me of ch ance on each occasion. The member in char ge shall supervise all activities on the o ccasions for which he is in ch arge and shall be responsible for the making of the required report thereof. The member in charge shall be familiar with the provisions of the Bingo Statute, and these rules and regulations. 4.2 Theroomwhere any game is being held, operated, or conducted, or where it is intendedthat any game shall be held, operated, or conducted, or where it is intended that any equipment be used, shall at all times be open to inspection by the appropriate law enforcement officers and agents of the District in which the premises are situated, and to the Board and its agents and employees. Bingo games shall not be commenced prior to 1 :30 p.m. and the operation of a fun ction shall be limited to six ho urs. Instant bingo is permitted during any event sponsored by the organization that is licensed to conduct it, regardless of the day or time. 4.3 No person under the age of eighteen (18) may participate in any bingo game. No person under the age of 18 shall be permitted to participate in any instant bingo game. Persons between the ages of 16 through 18 may conduct or assist in conducting the bingo game and persons over the age of fourteen (14) may act as waiters and waitresses in the handling of food or drinks at an occasion on which a licensee conducts bingo. 4.4 No organization licensed prior to enactment of 71 Del. Law 444 (July 14, 1998), may hold, operate, or conduct bingo more often than ten (10) days in any calendar month. No bingo licensee licensed after the enactment of 71 Del. Laws 444 (July 14, 1998) shall conduct more than one bingo event per week. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS A bingo licensee licensed prior to the enactment of 71 Del. Laws 444 (July 14, 1998), whose license lapses for six (6) months or more due to nonrenewal or suspension or any other reason shall, upon licensing thereafter, be considered a licensee licensed after the enactment of 71 Del. Laws 444 (July 14, 1998). 4.5 The Board and its duly authorized agents and employees may examine the books and records of any licensee, so far as tho se bo oks and re cords relate to a ny tran saction con nected with th e h olding, operating, and con ducting of th e g ame of b ingo, an d may e xamine an y ma nager, officer, d irector, agent, member, employee, or assistant of the licensee under oath in relation to the conduct of the game of bingo. 4.6 No prize in an amount or value greater than $250 shall be offered or given in any single game and the aggregate amount or value of all prizes offered or given in all games played on a single occasion shall not exce ed $ 1,250. All winn ers sha ll be d etermined an d all p rizes shall b e awar ded in a ny gam e played on any occasion within the same calendar day as that upon which the game is played. The value of any promotional giveaways, which shall be no more than $500 per annum to be distributed at an organizational anniversary date and no more than three (3) holiday dates per year, shall not be counted towar ds the do llar amounts de scribed in this section. Howev er, a licens ee may of fer inducements, including but not limited to cookie-jar bingo games that do not exceed $1,000 per game per night, free refreshments, and free transportation of players to and from bingo events, to attract bingo players to the bingo event, provided that the fair market value of induc ements is limited to 15% of the total amount of all other prizes offered or given during the bingo event. 4.7 Two or more organizations may not hold games of bingo at the same place on the same day. Unless a bingo licensee has been licensed prior to the enactment of 71 Del. Laws 444 (July 14, 1998), only one licensed organization may ho ld bingo games in a licensed organization's building during any give n week. 4.8 No alcoholic beverages shall be permitted in the room from the time the bingo hall opens until the conclusion of the last bingo game of the occasion. 4.9 All games shall be conducted with equipment that is owned absolutely by the licensee or that is leased for fees not in excess of those allowable under the Schedule of Rental for leasing of equipment on file with the Board. Equipment shall include playing cards. If the licensee uses cards that are for more than one session of playing bingo, these cards should be identified as the property of the licensee. 4.10 All winners shall be determined and all prizes shall be awarded in any game played on any occasion within the same calendar day as that upon which the game is played. 4.11 When more than one player is found to be the winner on the call of the same number in the same game, the designated prize shall be divided equally as possible; and when division is not p ossible, substitute prizes, wh ose ag gregate va lue shall no t e xceed th at of th e d esignated pr ize, sh all be awarded; but such substitute prizes shall be of equal value to each other. 4.12 The equipment used in the playing of bingo and the method of play shall be such that each card shall have an equal opportunity to be a winner. The objects drawn shall b e essentially equal as to size, shape, weight, and balance, and as to all other characteristics that may control their selection, and all shall be present in the receptacle before each game is begun. All numbers shall be announced so as to be visible or audible to all players present. 4.13 The p articular ar rangement of nu mbers re quired to be cover ed in or der to win th e ga me shall b e clearly described and announced to the players immediately before each game is begun. 4.14 No arrangement of numbers shall be required to be covered in order to win the g ame other than the following: 4.14.1 one unspecified horizontal row; 4.14.2 one unspecified vertical row; 4.14.3 one unspecified full diagonal row; 4.14.4 one unspecified row (horizontal, vertical, or diagonal); 4.14.5 Two or more of the foregoing, forming a specified arrangement; 4.14.6 The entire card; DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 4.14.7 Four corners; 4.14.8 Eight spaces surrounding the free space. 4.14.9 Any other configuration or shape on the card established by an organization, provided the players are informed of the shape needed to win before play commences. 4.15 Within the limits contained in 28 Del.C. §1132(b), alternate prizes may be offered depending upon the number of calls within which bingo is reached, provided the application for the bingo license and the license so specify. 4.16 Any pla yer sha ll be e ntitled to call for a veri fication of all nu mbers dr awn at the time a winne r is determined, and for a verification of the objects remaining in the receptacle and not yet drawn. The verification shall be made in the immediate presence of the member designated to be in charge on the occasion, but if such member is also the announcer, then in the immediate presence of an officer of the licensee. 4.17 No licensee shall conduct more than forty (40) games on a single occasion. 4.18 In the playing of bingo, no person who is not physically present in the room where the game is actually conducted shall be allowed to participate as a player in the game. 4.19 Within the limits contained in 28 Del.C. §1132(6), the prizes offered may be varied depending upon the number of people who attend the occasion, provided the application for bingo license and license so specify. If a licens ee avails itself of the prov isions of this rule, it must ann ounce at the b eginning of each game the number of people present and the prizes to be awarded. 4.20 The entire proceeds of the games of bingo must be used solely for the promotion or achievement of the purposes of the licensee. 4.21 Any local rules adopted by the licensee that affect the conduct of the players or the awarding of prizes shall be pro minently posted in at least four location s with in th e ar ea wher e th e bin go ga mes are conducted. 4.22 The licensee shall be permitted to reserve seats within the area where the bingo games are conducted to p rovide for th e sp ecial needs of ha ndicapped persons, an d the licen see sh all en sure th at the remaining seats are made available to the players on an equal basis. 4.23 A licensee may charge an admission fee to a game event in any room or area in which a game is to be conducted. Th e ad mission fe e shal l entitle th e ga me pla yer ( a) to a card e nabling the player to participate without additional charge in all regular games to be played under the license at the event, or (b) to freerefreshments. The licensee may chargeanadditional fee to a game player for a single opportunity to participate in a special game to be played under license at the event. 4.24 No p erson shall conduct o r assist in co nducting a ny game except a n active m ember o f the organization to which the license is issued. 4.25 No item of expense shall be incurred or paid in connection with the conduct of the game except shall be incurred or paid in connection with the conduct of the game except such as are bona fide items of a reasonable amount for merchandise furnished or services rendered which are reasonably necessary for the conduct of the game. 2 DE Reg. 1224 (1/1/99) 2 DE Reg. 1761 (4/1/99) 12 DE Reg. 357 (09/01/08) 13 DE Reg. 107 (07/01/09) 13 DE Reg. 412 (09/01/09) 13 DE Reg. 1355 (04/01/10) 5.0 Reports After the Function 5.1 When no game is held on a date a licensee is authorized to hold such game, a report to that effect shall be filed with the Board. 5.2 Within 5 days of the last day of the function, the member-in-charge shall submit a report to the Board that includes all information required by 28 Del.C. §1140(a). DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 5.3 If a licensee fails to timely file a report or if a report is not properly verified, or not fully, accurately, and truthfully completed, no further license shall be issued to the licensee and any existing license shall be suspended until such time as the deficiency has been corrected. 11 DE Reg. 516 (10/01/07) 12 DE Reg. 357 (09/01/08) 13 DE Reg. 107 (07/01/09) 6.0 Suspension and Revocation of Licenses 6.1 Proceedings to suspend or to revoke a license shall be brought by notifying the licensee of the ground thereof and the date set forth for a hearing thereon. The Commission may stop the operation of a game pending hearing, in which case the hearing must be held within five (5) days after such action. 6.2 When suspe nsion or re vocation proceedings a re begun be fore the Co mmission, it shall hear th e matter a nd m ake wr itten findings in su pport of it s decision. T he lic ensee shall be in formed o f the decision and of the effective date of the suspension or revocation. 6.3 When a license is suspended or revoked, the licensee shall surrender up the license to the Board on or before that effective date set forth in th e notice of decision. In no case shall any license be valid beyond the effective date of suspension or revocation, whether surrendered or not. 6.4 Upon finding of the violation of these rules and regulations or the Bingo Statute, such as would warrant the suspension or revocation of a license, the Board may in addition to any other penalties which may be imposed, declare the violator ineligible to conduct a game of bingo and to apply for a license under said law for a period not exc eeding thirty (30) months thereafter. Such declaration of the ineligibility may be extended to include, in addition to the violator, any of its subsidiary organizations, its parent organization and any other organiz ation having a common p arent organization or otherwise af filiated with the viola tor, when in the o pinion of the Boa rd, the circumstances of the violation warrant such action. 7.0 Severability If any p rovision of these Regulations or the app lication o f su ch pr ovision to any p erson or circumstances s hall be held invalid, the v alidity of th e rem ainder of these Regu lations an d the applicability of such provisions to other persons or circumstances shall not be affected thereby. 2 DE Reg. 1224 (1/1/99) PUBLIC SERVICE COMMISSION Statutory Authority: 29 Delaware Code, Sections 1133 and 10115(a) (29 Del.C., §§1133 & 10115(a)) IN THE MATTER OF THE ADOPTION OF RULES | AND REGULATIONS GOVERNING THE | PROCEDURE FOR INSPECTION AND COPYING | PSC REGULATION DOCKET NO. 62 OF PUBLIC RECORDS UNDER THE FREEDOM | OF INFORMATION ACT, 29 DEL.C. §§10001-10006 | (OPENED AUGUST 17, 2010) | ORDER NO. 7820 AND NOW, this 17th day of August, 2010. WHEREAS, from time to time, the Delaware Public Service Commission (the “Commission”) receives requests DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS for documents pursuant to the Freedom of Information Act, 29 Del.C. §§10001-10006 (“FOIA”); and WHEREAS, section 10003 of FOIA states that it is the responsibility of public bodies to establish rules and procedures regarding access to public records as well as fees charged for copying such records; and WHEREAS, the Commission opens this docket to propose rules and regulations applicable to FOIA requests made to the Commission for public records in the possession of the Commission (the “Proposed FOIA Rules”); and WHEREAS, a copy of the Commission’s Proposed FOIA Rules is attached hereto as Exhibit A; and WHEREAS, the Commission believes that the Proposed FOIA Rules shou ld be published in the Delaware Register of Regulations to provide public notice of the rulemaking to develop final rules and regulations; NOW, THEREFORE, IT IS HEREBY ORDERED BY THE AFFIRMATIVE VOTE OF NO FEWER THAN THREE COMMISSIONERS: 1. That, for the reasons set forth in the body of this Order, and pursuant to 29 Del.C. §10003(b) and 29 Del.C. §10115, the Commission proposes rules and regulations applicable to requests made to the Commission, pursuant to the Freedom of Information Act, 29 Del.C. §§10001-10006 (“FOIA”), for public records in the possession of the Commission (the “Proposed FOIA Rules”, a copy of which is attached hereto as Exhibit A). 2. That, pur suant to 29 Del.C. §§1133 an d 10 115(a), the Secr etary shall transmit to the Reg istrar of Regulations for pu blication in the Delaware Register of Regulations a copy of th is Order, along with a copy of Proposed FOIA Rules (Exhibit A). 3. That th e Secr etary shall cause the No tice of Proposed Rule -Making ( the “ Notice”, a copy of which is attached hereto as Exhibit B) to be published in The News Journal and the Delaware State News newspapers on or before September 1, 2010. The Secretary shall include proof of such publication in the docket file before the public hearing in this matter. 4. That, pursuant to 29 Del.C. §§ 10115(a) a nd 1 0116, pe rsons o r entities ma y file written comm ents, suggestions, compilations of data, briefs, or other written materials, on or before September 30, 2010. 5. The Commission reserves the jurisdiction and authority to enter such further Orders in this matter as may be deemed necessary or proper. If you wish to obtain written copies of the Order and the Proposed FOIA Rules, please contact the PSC at (302) 736-7500. Copies are $0.25 per page. Payment is expected prior to copying (if you wish the copies to be mailed) or at the time the copies are retrieved (if you retrieve them in person). You may also download a copy of the Proposed FOIA Rules from the September 2010 issue of the Register of Regulations (see http://regulations.delaware.gov/). The PSC now solicits comments, suggestions, compilations of data, briefs, or other written materials about the Proposed FOIA Rules. If you wish to file any such materials, you should submit an original and ten copies of such written documents on or before September 30, 2010. You should file such materials with the PSC at the following address: Public Service Commission 861 Silver Lake Boulevard Cannon Building, Suite 100 Dover, Delaware, 19904 Attn: Proposed FOIA Rules If possible, you should accompany such written comments with an electronic version of the submission. Such electronic co py m ay b e f iled on a co py-capable CD -Rom dis k or se nt as an a ttachment to an In ternet e-mail addressed to joseph.handlon@state.de.us. If no comments or objections are timely received, the Commission may approve the Proposed FOIA Rules as final without further proceedings. Any individual with a disability desiring to participate in these proceedings or to review the filings should contact the Commission to discuss any auxiliary aids or serv ices needed. The SA C’s toll-free telephone number w ithin Delaware is 1-800-282-8574. The PSC m ay b e reached at ( 302) 73 6-7500 (in cluding text telephone communications). DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS BY ORDER OF THE COMMISSION: Arnetta McRae, Chair Jeffrey J. Clark, Commissioner Joann T. Conaway, Commissioner Jaymes B. Lester, Commissioner Dallas Winslow, Commissioner ATTEST: Alisa Carrow Bentley, Secretary 1008 Regulations Governing Requests made pursuant to the Freedom of Information Act 1.0 Definitions Capitalized ter ms no t otherwise d efined in the se regulations shall have the mea nings given those terms in FOIA and the Com mission’s Rule s of Pr actice an d Procedure (see 26 DE Admin. Code §1001), as applicable. “Affected Party” means any party who has submitted Third Party Confidential Records. “FOIA” shall mean the Freedom of Information Act, 29 Del.C., Ch. 100, as may be amended from time to time. “Third Party Confidential Records” are records submitted to the Commission by a third party under a claim of confidentiality pursuant to the Commis sion’s Rules of Practice and Procedure. Records will not be co nsidered T hird Pa rty Confidential Records fo r pu rpose of th ese re gulations if th e re cords were n ot iden tified an d subm itted as co nfidential in ac cordance with t he Commiss ion’s R ules of Practice and Procedure. 2.0 General 2.1 The Comm ission pr omulgates the se re gulations, pursuant to 29 Del.C. §10 003(b), to est ablish procedures regarding requests made to the Commission pursuant to FOIA for public records in the possession of the Commission. The Commission is under no obligation under FOIA to answer written questions, analyze data, create documents not already in its possession or compile information in a record. F OIA r equests sha ll b e made fo r the purposes of obtaining existing d ocuments i n th e Commission’s possession. 2.2 Consistent with FOIA, it is the Commission’s desire that the public have access to the Commission’s public records under reasonable terms and conditions. These regulations establish reasonable fees for compiling and photo-copying public records and prov ide instructions regarding how to make FOIA requests with the Commission and how such requests will be processed. 2.3 Commission staff may perform the duties of the Commission under these regulations. 3.0 Requests 3.1 Persons requesting requests for records pursuant to FOIA shall submit an original and one copy of a written letter request indicating that the request is being made pursuant to FOIA. The written request shall be addressed to: Delaware Public Service Commission Attn.: Commission Secretary 861 Silver Lake Boulevard Cannon Building, Suite 100 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS Dover, Delaware 19904 Requests by electronic mail will not be entertained. 3.2 Requests shall indicate clearly where records are to be sent. 3.3 Requests for records shall describe the records sought in sufficient detail to enable their location with reasonable effort. 3.4 Records may not be produced to any person who has an outstanding balance with the Commission relating to a prior FOIA request. 3.5 Requests that do not comply with these regulations may be denied in whole or in part. 4.0 Responses 4.1 The Commission shall respond to a request made under these regulations within ten (10) days of receipt of the request. Such response may include the requested records, deny the request in whole or in part, or indicate when the r equested records will be produced and under what, if any, conditions. A response to a request for Third Party Confidential Records shall be made pursuant to the procedures and the timeframe set forth in Rule 6 below. 4.2 To the e xtent a FOIA r equest see ks d ocuments th at the Co mmission, in its sole discretion, may consider voluminous, the Commission may require that the party requesting the records inspect and copy the re cords at th e Co mmission’s of fice during its r egular b usiness h ours. Alter natively, the Commission may , in it s s ole discr etion, employ the assist ance of an ou tside ven dor to copy the requested records, in which case the requester will be required to pay the copy charges assessed by such vendor. 5.0 Fees for Photocopying Performed by Commission and Administrative Fees. 5.1 Administrative Fees. The C ommission may assess administrative fees incurred in re sponding to a FOIA request as set forth herein. Such fees include: 5.1.1 Staff time asso ciated wit h pr ocessing FOIA r equests, inclu ding, but not limited to, time spent locating and reviewing files, monitoring file reviews, and generating computer records. 5.1.2 Administrative fees will be billed per quarter hour and will be billed at the current, hourly pay grade rate of the personnel per forming the servic e. Administrative charges will be in addition to any copying charges. 5.2 Photocopy Charges 5.2.1 Standard Size Copies. The charge for copying standard size black and white public records shall be $0.50 per printed page (i.e., single-sided copies are $0.50 and double-sided copies are $1.00). The charge for color copies or printouts shall be $2.00 per page. This charge applies to copies on the following standard paper sizes: 8.5 x 11; 8.5 x 14; and 11 x 17. 5.2.2 Oversized Copies/Printouts. The charge for copying oversized public records (including but not limited to blueprints, engineering drawings, GIS printouts and maps) shall be as follows: 24 x 26: $2.00 each; 24 x 36: $3.00 each; 30 x 42: $5.00 each; and all larger documents: $1.00 per square foot. An additional charge of $1.50 per page will be assessed to color copies. 5.2.3 Microfilm/Microfiche Printouts. Microfilm and/or micr ofiche printouts mad e by Commission personnel and printed on standard sized paper will be $1.00 per page. 5.2.4 Electronically-Generated Records. Charges for copying records maintained in an electronic format will be calculated by the material costs involved in generating the copies, including but not limited to magnetic tape, diskette or compact disc costs and third-party costs. 5.3 Payment for copies and/or administrative charges are due at the time the records are released. 6.0 Requests Seeking Non-Public and Third Party Confidential Records. 6.1 Records identified as non-public pursuant to 29 Del.C. §10002(g) shall not be produced in response to a FOIA request. In addition, the following procedures shall apply to requests seeking records that the Commission believes are non-public because they are Third Party Confidential Records: DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 PROPOSED REGULATIONS 6.1.1 Upon receipt of a request seeking Third Party Confidential Records, the Commission will notify the Affected Party in writin g of th e request, identifying the party making the request and the Third Party Confidential Records sought. 6.1.2 Within ten (10) days of receipt of the notice required by Rule 6.1, the Affected Party shall advise the Commission in w riting whether it opposes the disclosure of th e Thir d Party Confidential Records. If the Commission is not so notified, it will produce the Third Party Confidential Records. 6.1.3 If the Affected Party timely objects to the production of the Third Party Confidential Records, the Affected Par ty sh all, at th e tim e of no tifying th e Co mmission of its objection, pr ovide in wr iting information sufficient to justify a claim of confidentiality under FOIA. Such information shall include, but not be limited to, the following: 6.1.3.1 Any measures taken by the Affected Party to guard against disclosure of the Third Party Confidential Records; 6.1.3.2 Whether the Third Pa rty Confide ntial Re cords have been in tentionally or in advertently disclosed since their submission to the Commission and any actions or precautions taken in connection with such disclosure; and 6.1.3.3 Whether the disclosure of the Third Party Confidential Records would result in substantial or harmful effects on the Affected Party’s commercial or financial interests, and if so: (a) what those harmful effects would be; (b) why the effects should be viewed as substantial; and (c) how the disclosure would cause such harmful effects. 6.1.4 The Affe cted Party bears th e bu rden of establishin g confid entiality und er FOIA. A unil ateral assertion that records are confidential or otherwise not subject to a FOIA request is insufficient to support a finding that requested information is in fact non-public. 6.1.5 Within a reasonable time after receiving the Affected Party’s response filed pursuant to Rule 5.1.2, the Co mmission sh all de termine whe ther th e Th ird Party Confide ntial Docu ments shou ld b e produced pursuant to FOIA despite the Affected Party’s claim of confidentiality. Written notice of the Co mmission’s de cision sh all b e pr ovided to th e p arty making th e FOIA r equest and the Affected Party. 7.0 Appeals of Commission’s Decision. As authorized by 29 Del.C. §10005, any person denied access to requested records may (i) bring suit in a cour t of competent jurisdiction within sixty (6 0) days of su ch denial or (ii) petition the Attorn ey General to determine whether a violation of FOIA has occurred. The procedures applicable to such petition are provided in 29 Del.C. §10005. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS Symbol Key Arial 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 la nguage] indicates text added at the time the final o rder was issu ed. [Bracketed stricken through] indicates language deleted at the time the final order was issued. Final Regulations The op portunity for public comme nt shall be he ld ope n fo r a min imum of 30 da ys af ter 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 wr itten 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 re gulation o r to take no action and the d ecision sh all be supported by it s findings on the evidence an d information r eceived; (4) T he exact text and cit ation of such reg ulation ado pted, ame nded 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 EDUCATION OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 501 REGULATORY IMPLEMENTING ORDER 501 State Content Standards I. Summary of the Evidence and Information Submitted The Secretary of Education seeks the consent of the State Board of Education to amend 14 DE Admin. Code 501 State Content Standards to reflect the State’s adoption of the Common Core Standards in English language arts and mathematics. The Common Core Standards were developed in partnership with the National Governors Association (NGA) and the Council of Chief State School Officers (CCSSO). State stakeholders participated in the review of the standards. Notice of the proposed regulation was published in the News Journal and the Delaware State News on July 6, 2010 in the form hereto attached as Exhibit “A”. Comments were received from Governor’s Advisory Council for Exceptional Citizens and the State Council for Persons with Disabilities endorsing the amendments. II. Findings of Facts The Secretary finds that it is appropriate to amend 14 DE Admin. Code 501 State Content Standards in order to reflect the State’s adoption of the Common Core Standards in English language arts and mathematics. III. Decision to Amend the Regulation For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 501 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS State Content S tandards. Therefore, pur suant to 14 Del.C. § 122, 14 DE A dmin. Code 501 S tate Content Standards attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 501 State Content Standards hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below. IV. Text and Citation The text of 14 DE Admin. Code 501 State Content Standards amended hereby shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 501 State Content Standards in the Administrative Code of Regulations for the Department of Education. V. Effective Date of Order The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on August 19, 2010. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations. IT IS SO ORDERED the 19th day of August 2010. DEPARTMENT OF EDUCATION Lillian M. Lowery, Ed.D., Secretary of Education Approved this 19th day of August 2010. STATE BOARD OF EDUCATION Teri Quinn Gray, Ph.D., President Gregory Coverdale Jorge L. Melendez, Vice President Terry M. Whittaker, Ed.D. G. Patrick Heffernan James L. Wilson, Ed.D. Barbara B. Rutt 501 State Content Standards 1.0 Instructional Programs 1.1 Instructional p rograms of fered in the p ublic sch ools of Delaware s hall be in alignment w ith the appropriate content standards documents. These documents are: English Language Arts Curriculum Framework, M athematics Cu rriculum F ramework, Science Curriculum F ramework, Social Studies Curriculum Fr amework, Health Ed ucation Cu rriculum F ramework and Assessmen t, Physica l Education Content Standards, Visual and Performing Arts Content Standards, Agriscience Curriculum Framework Content Standards, Business Finance and Marketing Education Curriculum Framework Content S tandards, W orld La nguage Cur riculum Fra mework Content S tandards, Technology Education Curriculum Framework Content S tandards, Skilled and T echnical Sciences Content Standards and the Family and Consumer Sciences Content Standards. 1.1.1 The content standards documents may from time to time hereafter be amended with the approval of the Secretary and the State Board of Education. 1.1.1.1 Effective with th e 20 10-2011 schoo l year , Delaware C ontent Standards in English language ar ts an d m athematics sha ll be comp rised of the Comm on Core S tandards developed in partnership with the National Governors Association and the Council of Chief State School Officers. 1.1.2 Integration of the content standards shall be provided for within and across the curricula. 1.1.3 Instructional materials and curricula content shall be kept current and consistent with provisions of 14 DE Admin. Code 50 2 Alig nment of Lo cal Schoo l Distr ict Curricula to the S tate Co ntent Standards and 14 DE Admin. Code 503 Instructional Program Requirements. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS 1 DE Reg. 153 (8/1/97) 1 DE Reg. 729 (12/1/97) 4 DE Reg. 343 (8/1/00) 4 DE Reg. 850 (10/1/00) 4 DE Reg. 853 (11/1/00) 5 DE Reg. 865 (10/1/01) 8 DE Reg. 445 (9/1/04) 13 DE Reg. 256 (8/1/09) DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF LONG TERM CARE RESIDENTS PROTECTION Statutory Authority: 16 Delaware Code, Section 3003A; 29 Delaware Code, Section 7971 (14) (16 Del.C., §3003A; 29 Del.C., §7971(14)) 16 DE Admin. Code 3220 ORDER 3220 Training and Qualifications for Nursing Assistants and Certified Nursing Assistants NATURE OF THE PROCEEDINGS Delaware Health and Social Servic es (“Department”), Division of Long Term Care Reside nts Pr otection, initiated proceedings to a mend the r egulations regarding t he T raining and Certification of Certified Nursing Assistants. The Department’s proceedings to amend its regulations were initiated pursuant to 29 Delaware Code, Section 10114, with authority prescribed by 29 Delaware Code, Section 7971. The Department published its notice of pr oposed regulatory change pursuant to 29 Delaware Code Section 10115 in th e May 2010 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by May 31, 2010 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 The proposal amends existing Regulation 3220 – Training and Certification of C ertified Nursing Assistants. The proposed change will amend the regulation relative to the assessment of fees for reciprocal certification of a nursing a ssistant from another st ate, a dd a r equirement fo r continuing education, m odify tra ining pr ogram requirements and delete the Senior CNA Training Program Instructor component. Statutory Authority • 16 Del.C. §3002A, “Training and Qualification for Nursing Assistants and Certified Nursing Assistants.” • 29 Del.C. §7971, (14) “Regulate the Certification of Nursing Assistants.” Summary of Changes The Beebe Medical Center School of Nursing, POLYTECH Adult Education Program, New Castle County Vo- Tech Sc hool D istrict, D elaware Technical and Community Colleg e, Gene sis He althcare Cor poration, Cour tland Manor Inc, th e Dela ware Health care Associatio n an d the Alzh eimer’s Asso ciation o ffered the comments and recommendations summarized below. DLTCRP has considered each comment and respond as follows: 1) Clar ification is r equested on whether the term general supervision requires that a p erson be personally present at all times. Response: The term General Supervision is now defined at 1.0 and does not require actual observation of students at all times. “General Supervision” is providing necessary guidance for the program and maintaining ultimate responsibility. 2) T he requirement of an RN h aving lon g te rm c are experience limits who c an te ach a nursing a ssistant DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS course. Response: The regulation has been modified to more closely match the federal regulation. Instructors do not have to have one year of long term care experience if the program is under the general supervision of at least one Registered Nurse who has the requisite long term care experience. 3.1.5 All instructors (classroom and clinical) must have completed a course in teaching adults or have experience tea ching adults or in th e ca se of high sc hool p rograms, b e a state licensed h igh scho ol teacher. Instructors do not have to have one year of long term care experience if the school has identified a RN supervisor as described in 3.1.4. The RN supervisor shall be available to all instructors, shall assist in developing lesson plans based on exper ience in t aking ca re of nursing home re sidents, shall periodically en sure and do cument th at instructors are operating effectively and that the program is operating in a ccordance with all st ate and federal regulations. Classroom ratios of student to instructor shall not exceed 24:1. 3) The requirement at 2.3 of testing within 30 days of course completion, or 90 days in the event of a failure is unreasonable in the current market. Response: This regulation has been modified. The individual has 24 months from the date of course completion to pass the competency test. The 90 days only applies if facilities wish to include the nursing assistant in staffing calculations. 4) The continuing education requirement at 2.4 may be cost prohibitive to many certified nursing assistants. Response: The Division will be offering courses statewide at little or no cost to nursing assistants. 5) Section 2.6 permits persons currently enrolled in nursing programs to take the CNA competency test after having satisfactorily completed a Fundamentals/Basic Nursing course, will the instructors of those hospital-based courses be deemed to have met the CNA Instructor requirements? Response: No, to clarify the importance of the long term care experience, 2.6 has been modified to add 75 hours of clinical training in a long term care setting. 3.1.4 also includes the long term care requirement. 6) At Sectio n 2.8 the regulation permits an individual to t ake the CNA competency t est after satisfactorily completing a military nursing assistant training course or a hospital based nursing assistant training course. Would the faculty in the hospital based nursing program be considered to meet the CNA Training Program instructor requirements? Response: No. Please note that 2.8 has been deleted. 7) Hospital-based CNA training programs may not be able to meet the requirement at 3.1.2 that 75 hours of clinical instruction be performed in a long term care setting. Response: This change brings the Delaware regulations into compliance with 42 CFR 483.152 which requires that the clinical portion of the training be performed in a facility or laboratory setting similar to the setting in which the individual functions as a nurse aide such as a nursing or skilled nursing facility. This construction of the regulatory requirement has recently been confirmed with CMS. 8) High school and community college teachers may not be able to meet the teaching experience requirement at 3.1.4. Response: Please refer to the new 3.1.5. The adult education training requirement is a federal regulation. The high school exception is set forth in the regulation and at 6.2.2. 9) Appropriately licensed or certified personnel are excluded from being adjunct instructors in their areas of expertise. Response: No, this concern is cured by a new section 3.1.8. 3.1.8 Other pe rsonnel from the he alth profession may sup plement th e in structor, including but n ot limited to , registered nu rses, licensed p ractical/vocational n urses, ph armacists, dieticians, social wo rkers, sanitarians, fire safety expe rts, nur sing hom e administrators, ge rontologists, p sychologists, ph ysical a nd occupational therapists, activ ity spec ialist, speech/l anguage/hearing ther apists a nd re sident rights exp erts. Supplemental personnel must have at least 1 year of experience in their respective fields. 10) The 60 day notice requirement at 3.1.9, for changes to program personnel is problematic. Response: The requirement was modified to 21 days and a provision for a waiver has been added. 3.1.9 Programs must notify the Divis ion in w riting (which may be fa xed) at least 2 1 days prior to implementing permanent and/or substantial changes to th e program or the program's personnel. Examp les of substantial changes include, but are not limited to, instructor(s), clinical or classroom site, major revision of course structure, change in textbook. The 21 day time period may be waived by the Division for good cause shown. 11) The curriculum competencies related to the psychosocial needs of the resident needed to be revised to reflect current practices. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS Response: Competencies 3.3.3.1.5 and 3.3.3.1.9 were revised. 12) High schoo l and community college teachers may not be able to meet the r equirement at 6.0 to ha ve formal educational preparation or experience with skills of adult learning. Response: As to the community college teachers, they teach adults, so the requirement must be met. High school programs meet the requirement with licensed teachers. See 6.2.2. FINDINGS OF FACT The Department finds that the proposed changes set forth in the May 2010 Register of Regulations should be adopted, subject to the modification set forth above which is not substantive. THEREFORE, IT IS ORDERED , that the proposed changes to Regulation 3220 -Training and Certification of Certified Nu rsing Assist ants, with the mo dification ind icated he rein, is ad opted and shall be fina l effective September 1, 2010. Rita Landgraf, Secretary, DHSS 3220 Training and Qualifications for Nursing Assistants and Certified Nursing Assistants (Formerly Regulation No. 69) 1.0 Definitions “Advanced Pra ctice Nurs e” shal l mea n a n i ndividual wh ose e ducation a nd licensure m eet the criteria outlined in 24 Del.C. Ch. 19 and who is certified in at least one of the following specialty areas: (1) Adult n urse pr actitioner; ( 2) Gerontological clinical nurse s pecialist; (3 ) Ger ontological n urse practitioner; (4) Psychiatric/mental health clinical nurse specialist; (5) Family nurse practitioner. “Assisted Living Fa cility” As sisted living facility is a resi dential arrangement for fee licensed pursuant to 16 Del.C. Ch. 11. “Certified Nursing Assistant (CNA)” a duly certified individual under the supervision of a licensed nurse, who provides care which does not require the judgment and skills of a licensed nurse. The care may includ e, but is no t limited to , th e following: bathing, dr essing, g rooming, toiletin g, am bulating, transferring and feeding, observing and reporting the general well-being of the person(s) to whom they are providing care. “Department” the Department of Health and Social Services. "Direct Supervision" means actually observing students performing tasks. “Division” the Division of Long Term Care Residents Protection. "General Supervision " is pr oviding necessary guidance for the p rogram a nd ma intaining ultima te responsibility. “Intermediate Care Facility” Facility licensed pursuant to 16 Del.C. Ch. 11 with a license designated for intermediate care beds. “Licensed Nurse” shall mean a licensed practical nurse, registered nurse and/or advanced practice nurse whose education and licensure meet the criteria in 24 Del.C. Ch. 19. "Licensed Nu rsing Fa cility" is a residential ins titution, as defined in 16 Del.C., §1104(4), w hich provides services to residents which include resident beds, continuous nursing services, and health and treatment services for individuals who do not currently require continuous hospital care. Care is given in accordance with physician's orders and requires the competences of a registered nurse (RN). “Licensed Prac tical Nurs e ( LPN)” a n urse wh o is lic ensed as a practical nurse in Delaware or whose license is recognized to practice in th e State of Delaware, and who may su pervise LPN’s, CNA’s, NA’s and other unlicensed personnel. “Nursing As sistant (NA)” a n in dividual who ha s co mpleted the re quisite training to be come a Certified Nursing Assistant but is awaiting certification. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS “Nursing Relat ed Services” those he alth re lated ser vices th at inc lude su pervision of , and dir ect assistance to, individuals in their activities of daily living and/or those physical and psychosocial basic skills encompassed in the certified nursing assistant curriculum. “Nursing Services Direct Caregivers” those individuals, as defined in 16 Del.C., §1161(e), assigned to the direct care of nursing facility residents. “Physician” a physician licensed to practice in the State of Delaware. “Registered Nurse (RN)” a nurse who is a graduate of an approved school of professional nursing and who is licensed in Delaware or whose license is recognized to practice in the State of Delaware. “Rehabilitation” the restoration or maintenance of an ill or injured person to self-sufficiency at his or her highest attainable level. “Resident” a person admitted to a nursing facility or similar facility licensed pursuant to 16 Del.C. Ch 11. “Restraint” “Physical Restraints” are defined as any manual method or p hysical or m echanical device, material or equipment attached or adjacent to the resident’s body that the individual cannot remove easily wh ich restricts freedom o f mo vement o r no rmal access to one ’s b ody. “Chemical Restraints” are defined as a psychopharmacologic drug that is used for discipline or convenience and not required to treat medical symptoms. “Senior Certified Nursing Assistant” a Certified Nursing Assistant who has met the requirements and training specified in Section 4 of these regulations. “Skilled Care Faci lity” Facility licensed pursuant to 16 Del.C. Ch. 11 with a license designated for skilled care beds. “Student” a person enrolled in a course offering certification as a CNA. [“Supervision” direct ov ersight a nd inspe ction of the act of acc omplishing a func tion or activity.] 6 DE Reg. 1505 (5/1/03) 2.0 General Training Requirements And Competency Test Each Nursing Assistant/Certified Nursing Assistant employed by any nursing facility either as contract/ agency or facility staff shall be required to meet the following: 2.1 An individual shall complete a nursing assistant training course approved by the Department onthe recommendation of the CNA T raining Cu rriculum Committee. The Committee shall consist of individuals with experience in the knowledge and skills required of CNAs. 2.2 Nursing Assistants a re re quired to p ass a competency te st p rovided by the De partment or b y a contractor approved by the Department. 2.3 [Nursing As sistants s hall t ake t he c ompetency t est wit hin 30 day s of co mpletion of a n approved program or when the nearest testing location is available to the nursing assistant, whichever is later. Nursing assistants who fail to obtain a passing score may repeat the test two ad ditional t imes, but mus t obt ain cert ification wit hin 90 da ys of prog ram comple tion. Nursing assistants who fail to obtain a passing score after testing three times must repeat the CNA training program before retaking the test, or they cannot continue to work as a nursing assistant. Nursing Assistants shall take the competency test within 30 days of completion of an approved program. Nurs ing as sistants who fail to obt ain a p assing s core may repe at the te st two additional times. Nursing assistants who fail to obtain a passing score after testing three times must repeat the CNA training program before retaking the test. The certificate of completion of an ap proved p rogram, a p rerequisite t o t esting, must be da ted wit hin 24 mont hs of th e available te sting date. Nursing assistants who are tr ained in a facility and are counted for staffing purposes pu rsuant to 16 Del.C. §1 162 ( f) mu st pass t he t est within 9 0 days of completion of the facility program to continue to be counted in staffing calculations.] 2.4 A Certified Nursing Assistant must In order to qualify for recertification, a CNA m ust, during each 24 month certification period: 1) complete 24 hours of approved continuing education, and 2) perform at DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS least 64 ho urs o f nu rsing re lated se rvices fo r pay un der the su pervision of a licen sed n urse or physician during each 24-month certification period in ord er to qualify for recertification. A certified nursing as sistant CN A who do es no t pe rform a t least 64 h ours of n ursing r elated ser vices in a certification period or fails to complete the required continuing education must complete and pass a new training course and the competency test again, or competency test. Nursing assistants who fail to obtain a p assing score af ter testing thr ee tim es must repeat th e CNA training pr ogram before additional testing will be permitted. 2.5 [A Certified Nursing Assistant An individual A Certified Nursing Assistant] trained and certified outside the State of Delaware in a program that equals or exceeds the federal nurse aide training program requirements in the Code of Federal Regulations §483.152 cannot work in Delaware without a Delaw are certificate. Delaware certification is required pr ior to be ing em ployed as a CNA. The Department will grant reciprocity if the following conditions are met: 2.5.1 [The CNA The individual The CNA] must have a current certificate from the jurisdiction where he or she currently practices, except that candidates from the State of Maryland must hold a current Geriatric Nursing Assistant certificate. 2.5.2 [The CNA The in dividual The CNA ] must ha ve 3 m onths o f fu ll-time experience as a CNA performing nursing related services for pay under the supervision of a licensed nurse or physician, or have completed a train ing and competency evaluation program with the number of hou rs at least equal to that required by the State of Delaware. 2.5.3 [The CNA The individual The CNA] must be in good standing in the jurisdiction where he/she is currently certified. 2.5.4 The [Nursing Assistant CNA] submits $30 to the Department to cover the costs associated with granting the reciprocity. 2.6 [Employees h ired a s] Nu rsing [Assistants/Certified N ursing Assistants st udents] who are currently e nrolled in a nur sing p rogram a nd h ave satisfa ctorily co mpleted a Fun damentals/Basic Nursing course with a 75 hour clinical component in a long term care setting will be deemed to meet the training requirements. These individuals will be appr oved to t ake the competency test upon submission of a le tter fro m th eir scho ol of nu rsing attestin g to cur rent enr ollment st atus and satisfactory course completion as described. 2.7 [Individuals Nursing students] who have graduated from an RN or LPN program within 24 months prior to application for certification are deemed qualified to meet the Department’s nurse aide training and competency evaluation program requirements and are eligible for certification upon submission of a sealed copy of their diploma. Individuals who have graduated from an RN or LPN program more than 24 months prior to application for certification are deemed qualified to meet the Department’s nurse aide tra ining pr ogram r equirements a nd ar e e ligible to t ake the competency te st u pon submission of a sealed copy of their diploma. 2.8 [An individual who has satisfactorily completed a military nursing assistant training course or hospital-based nur sing as sistant t raining co urse of at le ast 150 hours with a which is substantially similar to Delaware's nurse aide training program curriculum comparable to the curriculum co ntent of Section 69.303 of t hese regu lations and who has per formed nurs ing related services within 24 months prior to application for certification is deemed qualified to meet the Department’s nurse aide training program requirements and is eligible to t ake the competency test upon submission of documentation of course completion. 2.9] For the purpose of calculating minimum staffing levels, any individual who has completed all of the classroom training and half of t he clinical training in a facility sponsored training program may be considered as a member of such facility’s staff while undergoing the last 37.5 hours of clinical training at such facility. 2.[109] A nursing assistant who is employed by, or who has received an offer of employment from, a federally certified nursing facility on the date on which the aide begins a nurse aide training and competency evaluation pr ogram may no t be ch arged fo r a ny portion o f the pr ogram including tuition, an y te sts taken and fees for textbooks or other required course materials. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS 2.[110] If a Certified Nursing Assistant who is not employed, or does not have an offer to be employed as a nurse aide be comes emp loyed by, or receives an of fer of emp loyment fro m, a fede rally certified nursing fac ility not later than 12 months af ter completing a nurse aide training and competency evaluation program, the federally certified nursing facility shall reimburse all doc umented personally incurred costs in completing the program. Facilities shall accept as documentation canceled checks, paid receipts, written verification from a training program or other written evidence which reasonably establishes the CNA’s personally incurred costs. Such costs include tuition, tests taken and fees for textbooks or othe r required cour se m aterials. Su ch cost s shall be re imbursed in eq ual qu arterly payments with full reimbursement to coincide with the CNA’s completion of one year of employment including the orientation period. 2.[121] Any nurs ing facility which reimburses a Certified Nurs ing Assis tant for documented personally incurred costs of a nurse aide training and competency evaluation program shall notify the Division of Long Term Care Residents Protection of such reimbursement. Notice of such reimbursement shall be entered in the CNA Registry dat abase and infor mation reg arding such reimbursement sha ll be available to facilities upon request. 6 DE Reg. 1505 (5/1/03) 8 DE Reg. 1014 (1/1/05) 3.0 CNA Training Program Requirements 3.1 General. Program approval must be obtained from the Division prior to operating a CNA program. To obtain approval, the curriculum content for the Certified Nursing Assistant training programs shall meet each of the following requirements: 3.1.1 The curriculum shall inc lude material that will prov ide a basic lev el of both knowledge and demonstrable skills for each individual completing the program. 3.1.2 The program shall be a minimum of 150 hours in length, div ided equally between clinical s kills training and classroom instruction consisting of: 1) classroom instruction including laboratory time of 75 hours, and 2) clinical skills training of 75 hours in a long term care setting. Additional hours may be added in either of these areas or both. 3.1.3 Classroom in struction and demonstrated proficienc y in eac h skill shall be completed prior to students’ pe rforming d irect resident ca re. Programs sh all main tain docum entation of re quired skills that each student has successfully demonstrated to the RN instructor. 3.1.4 Classroom ratios of student to RN instructor shall not ex ceed 24:1. Clinical and laboratory ratios of student to instructor shall not exceed 8:1.[All instructors must have completed a course in teaching adults. [Or in the case of High School Programs be a state-licensed high school teacher.] The training of nursing assistant must be done by or under the general supervision of a RN who possesses a minimum of two yea rs of nursing experience, at least 1 yea r of wh ich must be in the provision of long term care facility services. The required one year of full- time (35-hours per week) long term care experience can be met by work experience in, or supervision or teaching of students in a certified skilled nursing facility or nursing facility defined in 42 CFR § 483.5(a).] 3.1.5 [All class room inst ruction mus t be done by a Re gistered Nurse. The Regis tered Nurs e must possess a minimum of 2 years of full time (35 hours per week) nursing experience in the past 5 years, at least 1 year of which must be in the provision of long term care at a certified Skilled Nursi ng Faci lity or nursing facility as de fined in 42 CF R § 483 .5(a). Classroom ratios of student to RN instructor shall not exceed 24:1. All instructors (classroom and clinical) must have completed a course in teaching adults or have experience teaching adults or in the case of high school programs, be a state licensed high school teacher. Instructors do not have to have one year of long term care experience if the school has identified a RN supervisor as described in 3.1.4. The RN supervisor shall be available to all instructors, shall assist in developing lesson plans based on experience in t aking ca re of nursing ho me re sidents, s hall pe riodically ensure and document t hat DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS instructors are operating effectively and that the program is operating in accordance with all state and federal regulations. Classroom ratios of student to instructor shall not exceed 24:1] 3.1.6 [Laboratory and clinical instruction may be provided by a qualified Registered Nurse or Licensed Practical Nurse. The Licensed Practical Nurse must have a minimum of three (3) years e xperience un der the su pervision o f a Regist ered Nur se and must ha ve the equivalent o f 1 ye ar f ull time ( 35 hours pe r we ek) ex perience in a lice nsed sk illed o r intermediate care nursing facility or hospital within the past 5 years. Clinical and laboratory ratios of s tudent t o Re gistered Nurs e o r L icensed Practical Nurse inst ructor sh all not exceed 8:1. LPN instructors must have at least three years of nursing experience and must work under the general supervision of a RN.] 3.1.57 [The RN instructor shall directly supervise provide general supervision to students at all times d uring clinical inst ruction. A Re gistered Nurs e or Lice nsed Pra ctical Nurs e s hall provide d irect supe rvision to st udents Stud ents sh all re main in visua l c ontact with a licensed nurse in the clinical setting while performing any skills in which proficiency has not been both demonstrated and documented. Clinical instructors shall provide general supervision of students at all times during clinical instruction. Clinical instructors shall provide direct supervision to students in the clinical setting while th e s tudent is lea rning a comp etency un til proficiency ha s be en both demonstrated and do cumented. Clin ical and labo ratory ra tios of st udent t o Re gistered Nurse or Licensed Practical Nurse instructor shall not exceed 8:1. 3.1.8 Other personnel from the health profession may supplement the instructor, including but not limit ed to , registered nurses, lice nsed pra ctical/vocational nur ses, pharmacists, dieticians, social wo rkers, sa nitarians, fire sa fety e xperts, n ursing ho me ad ministrators, gerontologists, p sychologists, ph ysical and oc cupational therapists, ac tivity sp ecialist, speech/language/hearing therapists and resident rights experts. Supplemental personnel must have at least 1 year of experience in their respective fields.] 3.1.6[89]Programs must notify the Division in writing (which may be faxed) when at least 21 days prior to implementing permanent and/or substantial changes to the program or the program's personnel are made. Examples of substantial changes include, but are not limited to, instructor(s), clinical or classroom site, major revision of course structure, change in textbook. The 21 day time period may be waived by the Division for good cause shown. 3.2 Equipment All programs shall have available at a minimum the following equipment: 3.2.1 Audio/Visual (Overhead projector and/or TV with VCR) 3.2.2 Teaching Mannequin, Adult, for catheter and perineal care 3.2.3 Hospital Bed 3.2.4 Bedpan/Urinal 3.2.5 Bedside commode 3.2.6 Wheelchair 3.2.7 Scale 3.2.8 Overbed Table 3.2.9 Sphygmomanometer 3.2.10 Stethoscope 3.2.11 Resident Gowns 3.2.12 Thermometers, Glass and Electronic 3.2.13 Crutches 3.2.14 Canes (Variety) 3.2.15 Walker DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS 3.2.16 Miscellaneous Supplies: i.e ., Band ages, Co mpresses, Heating Pad, He aring A id, Dentures, Toothbrushes, Razors. 3.2.17 Foley Catheter Drainage Bag 3.2.18 Hydraulic Lift 3.2.19 Adaptive eating utensils/equipment 3.3 Curriculum Content The following material identifies the minimum competencies that the curriculum content shall develop. Nursing assistants being prepared to work in skilled, intermediate, or assisted living facilities either as direct or contract staff shall master each competency. All demonstrable competencies for each student must be documented as mastered by the RN instructor in order for a student to qualify as successfully having completed that section of programming. 3.3.1 The Nursing Assistant Role And Function Introduces th e characteristics o f a n ef fective n ursing assistant: p ersonal attributes, o n-the-job conduct, ap pearance, g rooming, h ealth an d ethical behavior. Also pr esented are th e responsibilities of the nursing assistant as a member of the resident care team. Legal aspects of resident care and resident rights are presented. Relevant Federal and State statutes ar e also reviewed. Competencies: 3.3.1.1 Function as a nursing assistant within the standards described below: 3.3.1.1.1 Define the role and functions of the nursing assistant and provide awareness of the legal limitations of being a nursing assistant. 3.3.1.1.2 Recognize the responsibilities of the nursing assistant as a member of the health care team. Understand the relevant State and Federal regulations for long term care and legalities of reporting and documenting incidents and accidents. 3.3.1.1.3 Understand the role of Long Term Care advocates, investigators and surveyors. 3.3.1.1.4 Identify th e “ chain of c ommand” in the o rganizational stru cture of the h ealth car e agency. 3.3.1.1.5 Maintain pe rsonal hygiene and ex hibit dr ess pr actices wh ich m eet p rofessional standards. 3.3.1.1.6 Recognize the importance of punctuality and commitment to the job. 3.3.1.1.7 Differentiate between ethical and unethical behavior on the job. 3.3.1.1.8 [Understand Rec ognize Underst and] the role, responsibility and functional limitations of the nursing assistant. 3.3.1.2 Demonstrate behavior that maintains resident’s rights. 3.3.1.2.1 Provide privacy and maintenance of confidentiality. 3.3.1.2.2 Promote th e resident’s rig ht to m ake personal choices to accommodate individual needs. 3.3.1.2.3 Give assistance in resolving grievances. 3.3.1.2.4 Provide needed assistance in going to and participating in resident and family groups and other activities. 3.3.1.2.5 Maintain care and security of resident’s personal possessions as per the resident’s desires. 3.3.1.2.6 Provide care which en sures that th e re sidents ar e fre e from ab use, mistreatment, neglect or finan cial explo itation and re port any inst ances of su ch po or ca re to th e Division of Long Term Care Residents Protection. Discuss the psychological impact of abuse, n eglect, mistre atment, m isappropriation of pr operty of r esidents a nd/or financial exploitation. 3.3.1.2.7 Maintain the resident’s environment and care through appropriate nursing assistant behavior so as to keep the resident free from physical and chemical restraints. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS 3.3.1.2.8 Discuss the potential negative outcomes of physical restraints, including side rails. 3.3.2 Environmental Needs Of The Resident Key Concepts: Introduces the nursing assistant to the need to keep residents safe from injury and infection in the long-term care setting. The nursing assistant is taught why and how to use infection control and isolation techniques. Safety through prevention of fires and accidents, and emergency procedures for fire and other disasters are presented. Competencies: 3.3.2.1 Apply the basic principles of infection control. 3.3.2.1.1 Identify ho w dis eases ar e transmitted a nd understand concep ts of in fection prevention. 3.3.2.1.2 Demonstrate proper hand washing technique. 3.3.2.1.3 Demonstrate appropriate aseptic techniques in the performance of normal duties and understand the role of basic cleaning, disinfecting, and sterilization tasks. 3.3.2.1.4 Demonstrate p roper iso lation an d s afety techn iques in the ca re of the infectious resident and proper handling and disposal of contaminated materials. 3.3.2.2 Assist with basic emergency procedures. 3.3.2.2.1 Follow safety and emergency procedures. 3.3.2.2.2 Identify safety measures that prevent accidents to residents. 3.3.2.2.3 Recognize signs when a resident is choking or may have an obstructed airway. 3.3.2.2.4 Assist with clearing obstructed airway. 3.3.2.2.5 Call for help when encountering convulsive disorders, loss of conscious ness, shock, hemorrhage, and assist the resident until professional help arrives. 3.3.2.2.6 Follow disaster procedures. 3.3.2.2.7 Report emergencies accurately and immediately. 3.3.2.2.8 Identify potential fire hazards. 3.3.2.3 Provide a safe, clean environment. 3.3.2.3.1 Identify the resident’s need for a clean and comfortable environment. Describe types of common accidents in the nursing home and their preventive measures. Be aware of the impact o f e nvironmental fa ctors o n the r esident in all areas in cluding bu t not limited to light and noise levels. 3.3.2.3.2 Report unsafe c onditions to appropriate superv isor. Use the nurs e call syst em effectively. 3.3.2.3.3 Report evidence of pests to appropriate supervisory personnel. 3.3.2.3.4 Report nonfunctioning equipment to appropriate supervisory/charge personnel. 3.3.2.3.5 Prepare soiled linen for laundry. 3.3.2.3.6 Make arrangement of furniture and equipment for the resident’s convenience and to keep environment safe. 3.3.3 Psychosocial Needs Of The Resident Key Concepts: Focus is placed on the diverse social, emotional, recreational and spiritual needs of r esidents in a lon g term ca re se tting. T he curriculum sha ll describ e some of the ph ysical, mental, and emotional changes associated with aging and institutionalization, and present ways in which the nursing assistant may effectively communicate with residents and their families. Competencies: 3.3.3.1 Demonstrate basic skills by identifying the psychosocial characteristics of the populations being serv ed in the nurs ing facility inc luding pers ons with ment al ret ardation, ment al illness and persons w ith dementia, Alzheimer’s diseas e, developmental disabilities and other related disorders. 3.3.3.1.1 Indicate the ways to meet the resident’s basic human needs for life and mental well being. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS 3.3.3.1.2 Modify h is/her own be havior in response to resident’s be havior. Re spect the resident’s b eliefs r ecognizing cultural dif ferences in ho lidays, spirituality, clothin g, foods and medical treatments. 3.3.3.1.3 Identify methods to ensure that the resident may fulfill his /her maximum potential within the normal aging process. 3.3.3.1.4 Provide training in, and the op portunity for , self-care accor ding to the resident’s capabilities. 3.3.3.1.5 Demonstrate principles of behavior management by reinforcing appropriate behavior and reducing or e liminating in appropriate b ehavior. [For p ersons wi th de mentia, recognize that cognitive functions are impaired, determine what the resident is trying to communicate and respond appropriately.] 3.3.3.1.6 Demonstrate skills which allow the resident to make personal c hoices and promote the resident’s dignity. 3.3.3.1.7 Utilize resident’s family as a source of emotional s upport and recognize the family’s need for emotional support. 3.3.3.1.8 Recognize how age, illness and disability af fect me mory, sexuality , mood and behavior, including wandering. 3.3.3.1.9 [Describe aggressive and wandering behavior; recognize responsibility of staff related to wanderers and aggressive residents. Recognize aggressive behavior and learn management techniques. Recognize that certain behaviors, such as wandering, are a form of communication. Learn to apply strategies to promote safe behaviors.] (Break in Continuity Within Section) *Please note that no additional changes were made to the regulation as originally proposed and published in the May 2010 issue of the Register at page 1386 (13 DE Reg. 1386). Therefore, the entire final regulation is not being republished. A copy of the final regulation is available at: 3220 Training and Qualifications for Nursing Assistants and Certified Nursing Assistants DIVISION OF SOCIAL SERVICES Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) ORDER Child Care Subsidy Program NATURE OF THE PROCEEDINGS Delaware He alth an d S ocial Se rvices (“ Department”) / Division of Soc ial Serv ices in itiated p roceedings to provide information of public inte rest wit h res pect to the Child Care Su bsidy Pr ogram re garding Income and Making Income Determinations. The Department’s pr oceedings wer e 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 public comment pursuant to 29 Delaware Code Section 10115 in the July 20 10 Delaware Register of Regulations, r equiring wr itten ma terials a nd su ggestions fr om the pu blic concerning the proposed regulations to be produced by July 31, 2010 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS SUMMARY OF PROPOSED CHANGES The proposed change described below amends Child Care Subsidy Program policies in the Division of Social Services Manual (DSSM) regarding Income and Making Income Determinations. Statutory Authority 45 CFR §98.11(b)(2), Administration under contracts and agreements Summary of Proposed Changes 1) DSSM 11003.9.1, Income: The purpose of this rule change is to clarify the ru les regarding determining countable income and to remove procedures. This amendment clarifies how to d ecide what income to count to determine eligibility for subsidized child care. 2) DSSM 1 1003.9.5, Making Income Determinations: The purpose of this rule change is to clarify the rules regarding determining financial eligibility and to remove procedures. The revised rule clarifies how to count income to arrive at a monthly amount. SUMMARY OF COMMENTS RECEIVED WITH AGENCY RESPONSE AND EXPLANATION OF CHANGES The Governor’s Advisory Council for Exceptional Citizens (GACEC) and the State Council for Persons with Disabilities (SC PD) of fered the fo llowing observation an d recommendation summarized below . DSS has considered each comment and responds as follows. First, §11003.9.1A refers to “social security pensions”. Section 11003.9.1 refers to (capitalized) “Social Security pensions”. DSS may wish to su bstitute “S ocial Sec urity income” in both contexts similar to it s r eference to “Supplemental Security I ncome” in th e la tter se ction. Ot herwise, th e re ference w ould appear to co ver Social Security retirement benefits but not Title II SSDI benefits. Agency Response: Thank you for your observation. The policy has been changed to read as follows: Countable Income. All sources of income, earned (such as wages) and unearned (such as child support, Social Security income, etc.) are countable income when determining a family's monthly gross income. … Second, §11003.9.1 lists “disregarded income which includes the following subpart: 7. The value of USDA donated foods and Food Stamp Act of 1964 as amended; This provision remains unchanged from the current regulation. However, the reference to the Food Stamp Act literally makes no sense (e.g. the value of the Food Stamp Act of 1964 is disregarded). We suspect some words are missing. Agency Response: Thank you for picking up on this error. The policy has been changed as follows: 7. the value of USDA donated foods; FINDINGS OF FACT The Department finds that the proposed changes as set forth in the July 2010 Register of Regulations should be adopted. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS THEREFORE, IT IS ORDERED , tha t the p roposed r egulation to a mend the Child Care Su bsidy Program policies regarding Income and Making Income Determinations is adopted and shall be final effective September 10, 2010. Rita M. Landgraf, Secretary, DHSS DSS FINAL ORDER REGULATIONS #10-36 REVISIONS: 11003.9.1 Income 45 CFR 98.11(b)(2) A. Countable Incom e. All sou rces of income , e arned (such as wag es) an d un earned (su ch as child su pport, [social s ecurity pensions So cial Sec urity in come], etc.) ar e cou ntable inco me whe n de termining a family's monthly gross income. Monthly gross income typically includes the following: 1. Money from wages or salary, such as total money earnings Money earned from work performed as an employee, including wages, salary, Armed Forces pay, commissions, tips, piece rate payments and cash bonuses. Count the amount earned before deductions are made for taxes, bonds, pensions, union dues, etc. This is g ross income. Wages need to be equal to the federal minimum wage or an equivalent. Gross income from farm or non-farm self-employment is determined by subtracting the self-employment standard deduction for producing income as described below. The individual's personal expenses (lunch, transportation, income tax, etc.) are not deducted as business expenses but are deducted by using the TANF standard allowance for work connected expenses. In the case of unusual situations (such as parent/caretaker just beginning business), refer to DSSM 9056 and 9074. Earnings from self-employment are counted after applying a standard deduction for self-employment expenses. To get the self-employment deduction, self-employed households must verify at least one business cost to produce income. Self-Employment Standard Deduction for Producing Income The cost for p roducing in come is a st andard de duction of the gr oss in come. Th is st andard d eduction is a percentage of the gross income determined annually and listed in the Cost-of-Living Adjustment (COLA) notice each October. The standard deduction is considered the cost to produce income. The standard deduction is co nsidered the cost to produce income. The gross income test is applied after the standard deduction. The earned income deductions are then applied to the net self-employment income and any other earned income in the household. The standard deduction applies to all self-e mployed households with costs to produce income. To receive the standard deduction, the self-employed household must provide and verify they have business costs to produce income. The verifications can include, but are not limited to, tax records, ledgers, business records, receipts, check receipts, and business statements. The self-employed household does not have to verify all its business costs to receive the standard deduction. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS Self-employed households not claiming or v erifying any cost s to pr oduce inc ome will not receive the s tandard deduction. 2. Social Security pensions, Supplemental Security Income, Veteran's benefits, public assistance p ayments, net r ental in come, u nemployment com pensation, wo rkers compensation, pe nsions, annuities, alimony, adoption assistance, disability benefits, military allotments, Rail Road Retirement, and child support. B. Disregarded Income Monies received from the following sources are not counted: 1. per capita payments to or funds held in trust for any individual in satisfaction of a judgment of Indian Claims Commission or the Court of Claims; 2. payments made pursuant to th e Alaska Native Claims Settlement Act to th e extent such payments are exempt from taxation under ESM 21(a) of the Act; 3. money received from the sale of property such as stocks, bonds, a house or a car (unless the person was engaged in the business of selling such property, in which case the net proceeds are counted as income from self- employment); 4. withdrawal of bank deposits; 5. money borrowed or given as gifts; 6. capital gains; 7. the value of USDA donated foods [and Food Stamp Act of 1964 as amended]; 8. the value of supplemental food assist ance und er the Child Nutrition Act of 1966 and the special food service program for children under the National School Lunch Act, as amended; 9. any payment received under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; 10. loans or grants such as scholarships obtained and used under conditions that preclude their use for current living costs; 11. any grant or loa n to any und ergraduate stu dent for educational pu rposes mad e or insured und er any program administered by the Commissioner of Education under the Higher Education Act; 12. home produce utilized used for household consumption; 13. all of the earned income of a minor or minor parent (under 18) who is a full-time student or a part-time child under age 18 who is a student who is working but is not a full-time employee (such as high school students who are employed full-time during summer); 14. all payments derived from participation in projects under the Food Stamp Benefit Employment & Training (FS FB E&T) program or other job training programs; 15. all Vista income; and 16. all income derived as a Census taker. Resources (s uch as cars, homes, savings accou nts, life in surance, etc.) ar e n ot co nsidered when determining financial eligibility or the parent fee. (Break In Continuity of Sections) 11003.9.5 Making Income Determinations 45 CFR 98.11(b)(2) DSS programmed the DCIS II Child Care Sub system to automatically make financial eligibility decisions. As long as the appropriate income for the appropriate persons is entered into the system, and as long as the correct family size is entered, the DCIS II Child Care Sub system will calculate income and determine eligibility. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS In the event of system failure, use 4 1/3 weeks per month to compute a person's monthly gross income. If there is a variance in wages, use the average of the last month's wages or the average of the last three month's wages, whichever is less. The following are examples for converting various pay schedules to monthly income. A. Client A is paid $200.00 per week - $200 x 4.33 = $866/month. B. Client A is paid $200 per week, but has a varying work schedule. Week one - $200; week two $100; week three - $176; week four - $200. $200 + $100 + $176 + $200 = $676 divided by 4 = $169/week average. $169 x 4.33 = $731.77/month. C. Client B is paid $400 every other week. $400 x 2.16 = $864. D. Client C is paid $950 twice a month. $950 x 2 = $1900/month. E. Other sources of income, such as child support, are added to wages either as the actual amount received or as an average of the amount received in the past three months. Staff will use gross monthly income in all cases except for self-employment income. Gross income is income before any deductions. See 11003.9.1 for disregarded income. Determine the mo nthly a mount of in come using the conversion method b elow. T his ap plies to ea rned and unearned income. A. Weekly gross income is multiplied by 4.33 to calculate the monthly income. B. Bi-weekly gross income is multiplied by 2.16 to calculate the monthly income. Bi-weekly income is income that is received every other week. C. Semi-monthly gross income is multiplied by 2 to calculate the monthly income. Semi-monthly income is income that is received twice each month. If the income is different from pay to pay, use the income from the previous month or the average of the last three months income, whichever is less. This applies for earned and unearned income. DIVISION OF SOCIAL SERVICES Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) ORDER Child Care Subsidy Program NATURE OF THE PROCEEDINGS Delaware He alth an d S ocial Se rvices (“ Department”) / Division of Soc ial Serv ices in itiated p roceedings to provide information of public interest with respect to the Child Care Subsidy Program regarding Interviews and Authorizing Service. The Department’s proceedings were initiated pursuant to 29 Delaware Code Section 10114 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS and its authority as prescribed by 31 Delaware Code Section 512. The Department published its notice of public comment pursuant to 29 Delaware Code Section 10115 in the July 20 10 Delaware Register of Regulations, r equiring wr itten mate rials a nd su ggestions fr om th e pu blic concerning the proposed regulations to be produced by July 31, 2010 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 The proposed change described below amends Child Care Subsidy Program policies in the Division of Social Services Manual (DSSM) regarding Interviews and Authorizing Service. Statutory Authority 45 CFR §98.11, Administration under contracts and agreements Summary of Proposed Changes 1) DSSM 11004.2, Interviews: The purpose of this rule change is to clarify current policy regarding interviews and to remove procedures. The original text is also reformatted to further clarify interview requirements for child care services. The intent of the proposed amendment is to simplify language and improve readability. 2) DSSM 11004.9, Authorizing Service Authorizing Child Care Services: The purpose of this rule change is to add program g uidelines for a uthorizing ser vices and to r emove procedures. The a mended p olicy st ates that Purchase of Care (POC) funds cannot be paid for parents/caretakers to provide direct care to their own children in a home or any other child care facility. SUMMARY OF COMMENTS RECEIVED WITH AGENCY RESPONSE AND EXPLANATION OF CHANGES The Governor’s Advisory Council for Exceptional Citizens (GACEC) and the State Council for Persons with Disabilities (SC PD) of fered the fo llowing observation an d recommendation summarized below . DSS has considered each comment and responds as follows. Overall, the proposed regulation is more condensed than the current vers ion and omits illustrations. It als o clarifies that parents cannot obtain the subsidy if they are caring for their own children in their own home or facility if the parent provides direct care to the child in that setting. The proposed regulation was published as 14 DE Reg. 11 in the July 1 , 2010 issue of the Register of Regulations. The Councils have the following observations and recommendations. First, §11004.2.4 authorizes consideration of a “special need” conveyed through “correspondence submitted by a physician or medical professional”. The current regulation is more expansive in defining the scope of persons who can submit documentation of a spe cial need. Section 11004.2.B.4.c authorizes the DSS worker to rely on “written documentation from a recognized professional (such as a doctor, social worker, nurse, school counselor, etc) of the special needs”. This is superior to the proposed regulation which requires an actual letter (in contrast to “written documentation”) and is limited to medical professionals. There are many circumstances in which a nonmedical professional (e.g. DVR worker; social worker; psychologist) could logically provide the confirmation of a special need. Agency Response: DSS would like to thank yo u fo r comme nt. The special ne eds pr ogram was re vised through th e Administrative Procedures Act in Jul y 2009 to in clude the statement “ documentation that m ay be provided on the Special Needs Form or any other written correspondence submitted by a ph ysician or medical professional with the authority to do so.” The purpose of this revision was to correct the oversight made in 2009 when this section should have been updated to be consistent with other sections of the manual. Second, in §11004.2.4, DSS may wish to consider amending the first line to read “any other information...such as documentation of travel time or a special need.” Travel time would be relevant to the need for child care in both the employment and school contexts. Merely referencing a “work schedule” or “class schedule” will understate the extent of need which should include travel time. Agency Response: DSS would like to thank you for your response however the statement will remain as is. Travel time relates to the amount of child care needed and is only considered after staff has determined there is a need for child care. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS Third, §11004.2.4. limits DSS workers to consideration of a “protective need” only if based on a DFS referral: “For a protective need, a referral from Division of Family Services must be submitted.” This may be unduly narrow. We recognize that related regulations [§§11003.7.6 and 11003.7.8] limit consideration of children with protective child ca re ne eds to th ose re ferred by DFS. The re levant fe deral r egulation [45 CFR 98 .20] refers to “an appropriate protective services worker” but does not define the term. As a practical matter, the DSCYF often provides primary case management and other services through contractors (e.g. Child, Inc.; Delaware Guidance). Moreover, there are many victim protection organizations. Fo r example, many police departments have victim advocates. We recommend expanding the scope of persons who can document a “protective need”. Consider the following substitute standard: A protective need must be based on a referral from the Division of Family Services (“DFS”), authorized DFS cont ract agency , or vict im services perso nnel em ployed by la w enforcement or no n-profit organization. Agency Response: DSS u nderstands you r desire to in crease th e so urces of a p rotective need referral. However, the Division is not in a position to expand this group of eligibles at this time. Fourth, §11004.9 includes the following recital: “These children may be able to get another type of child care”. This is somewhat cryptic. If DSS is aware of some other sources of child care assistance in this context, it would be pr eferable to pr ovide some guidance to workers th rough a cross re ference o r no te. The De partment of Education periodically includes non-regulatory notes in its regulations with cross references to other regulations or resources. Agency Response: Thank you for your suggestion that we give some guidance to workers through a cross reference or note to the other types of child care available. This statement serves as a reminder that those parents who cannot get child care assistance because they are providing direct care to their own children are not prohibited from receiving child care assistance if their children are placed in another child care setting. DSS has revised the policy as follows: All child care services must be authorized before parents/caretakers can receive subsidized child care. Parents/caretakers can choose any provider who is either licensed, licensed exempt or self arranged. No parent/caretaker can receive POC funds to provide child care services to their own children in a home or any other child care facility where the parent/caretaker provides direct care to that child. These children may be able to get child care assistance if their children are placed in another child care setting. FINDINGS OF FACT The Department finds that the proposed changes as set forth in the July 2010 Register of Regulations should be adopted. THEREFORE, IT IS ORDERED , tha t the p roposed r egulation to a mend the Child Care Su bsidy Program policies regarding Interviews and Authorizing Service is adopted and shall be final effective September 10, 2010. Rita M. Landgraf, Secretary, DHSS DSS FINAL ORDER REGULATIONS #10-39 REVISIONS: 11004.2 Interviews and Necessary Documentation 45 CFR 98.11 Complete an interview either over the phone or in person. When scheduling an applicant for an interview do so in the following manner. A As soon as reasonably possible after the parent/caretaker makes an informal contact set a specific d ay and time for an interview. Co nsider th e p arent/caretaker's sc hedule a nd attempt to sc hedule a ppointments a t parent/caretaker convenience. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS B Advise the p arents/caretakers of the information they will need to bring to the interview . At a minimum parent/caretakers should bring: 1. if employed, current pay stubs covering the 30 days immediately before the date of application or a letter or employer statement (on company letterhead) noting the employer's name, the parent/caretaker's work schedule, earnings, frequency of pay, and start date; 2. if in training and/or school, a statement from the school/training program with starting and completion dates and days and hours required to attend or a copy of a registration form and class schedule; 3. any other income information; 4. any other information which may have a bearing on establishing need, such as: a. in cases of a spe cial need for either a child or an adult, parents/caretakers must complete the Special Needs Form; b. for a protective need, a completed Division of Family Services Referral; or c. written documentation fr om a r ecognized pr ofessional (such as doctor , social wor ker, nu rse, school counselor, etc.) of the special needs. C. Along with appointment information, send and/or give parents/caretakers a child care certificate package and a list of approximately five available contracted providers. Instruct parents/caretakers to select a provider prior to the formal interview. Even though parents/caretakers may ultimately select providers under contract with DSS, provide them with enough information to make an informed choice. Therefore, in all instances, send and/or give parents/caretakers a certificate package and Guide to Quality Child Care booklet. Inform clients that if they fail to provide the DSS Case Manager with a provider within 60 days of eligibility confirmation and noticing, their case will close. D. For parents/caretakers who come into the office without a sch eduled appointment, conduct the formal interview process that same day if possible. However, the parents/caretakers need to select a child care provider before care can be authorized. E Though verification of the appropriate information to establish need is important, the system will authorize Presumptive Child Ca re se rvice can be auth orized fo r a pproximately o ne mo nth while ce rtain infor mation verification is pending. In this case, the sy stem will, give notice of needed informat ion, authorize child care for approximately one month (depending on the date of application) and end date the authorization. If the system does not authorize Presumptive Child Care, parents/caretakers will be giv en ten da ys from the date of the initial application t o s ecure and provide th e ne cessary d ocumentation. If th e parents/caretakers r eceive P resumptive Child Care and the initial application date occurs between the first and the ninth of the month, the authorization for care will extend to the end of the current month. If the initial application occurs from the tenth of the month or after, authorization for care will extend to the end of the following month. (For mo re information on Presumptive Child Care see section 11004.8) EXAMPLE 1: A parent comes into the office on January 6 and needs care to start work beginning January 7. The parent meets eligibility criteria. The system will authorize Presumptiv e Child Care until January 31 and give the parent until January 16 to provide proof of employment. If by January 16 the parent provides proof, enter the information and verification into the system and run SFU/EDBC. The system will generate a new authorization with the end date of June 30th. If by January 17 the parent fails to provide proof, a DCIS II Child Care Sub system notice is mailed informing the parent that child care services will end as of January 31. EXAMPLE 2: A parent comes into the of fice on January 12 and needs to start work beginning January 13. The parent meets eligibility requirements. The system will authorize care until February 28 an d give the p arent until January 22 to provide proof. If by January 22 the parent provides proof, enter the information and verification into the system and run SFU/EDBC. The system will generate a new authorization with an end date of June 30th. If by January 22 the parent fails to provide proof, a DCIS II Child Care Sub system notice is mailed informing the parent that child care will end as of February 28. Complete an interview either over the phone or in person. Conduct the interview the same day if possible. Parents will need to supply the following verifications: 1. if employed: DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS a. pay stubs for the 30 days before the date of application, or b. a letter or em ployer st atement ( on comp any letter head) noting the employer's na me, te lephone number, the parent’s/caretaker's work schedule, earnings, frequency of pay, and start date, 2. any unearned income, such as child support, Social Security, and unemployment compensation 3. if in training and/or school: a. a statement from the school/training program with starting and completion dates and days and hours required to attend, or b. a copy of a registration form and class schedule; 4. any other information which will help in determining the need for s ervice, s uch as doc umentation of a special need. Documentation of the special need may be provided on the Special Needs Form or any other written correspondence submitted by a physician or medical professional with th e authority to do so. For a pr otective need, a referral from Division of Family Services must be submitted. Parents must be given any information that will help them to make an informed decision regarding their child care services. Provide parents/caretakers with a list of providers and a child care certificate packet as needed. Although verifications are needed, Presumptive Child Care may be opened pending information. Presumptive Care can be authorized fo r app roximately one mon th, dep ending on the date of a pplication. ( For mo re information o n Presumptive Child Care see DSSM 11004.8). (Break In Continuity of Sections) 11004.9Authorizing Service Authorizing Child Care Services 45 CFR 98.11 Once a case is created, service mu st be authorized before parents/caretakers can receive subsidized child care. Authorization is both the name for the form (618d) and the process to grant parents/caretakers child care services (see Section 11002.9 for definition). Complete a separate authorization for each child who is eligible to receive child care services. Therefore, if there is m ore tha n one ch ild in a fam ily who needs service, complete sep arate aut horizations for each child. Complete an authorization by creating one in the DCIS II Child Care Sub system. Again, as when entering a case, in DCIS II authorization data screens have required data fields which are highlighted. Complete these data fields before proceeding. Follow the rules below in creating authorizations. A. Obtain provider information before completing an authorization. This means that if parents/caretakers wish to select a provider by using a child care certificate, they must have the certificate returned before an authorization can be issued. B. Parents/caretakers can only choose providers who are either self-arranged, licensed exempt or who can be matched to existing information in the Site Referral function of the DCIS II Child Care Sub system. If the provider selected has a contract with DSS, this provider will be listed in the DCIS II under the Site Referral section. Access these providers t hrough their s ite ID# or s ite se arch. Finally, if p arent/caretakers p arents/caretakers u se a certificate and they select a contracted provider, consider this as contracted care even though the parent/caretaker used a certificate. C. When parents/caretakers wish to self-arrange child care, ensure the parent submits the information on the Self-Arranged Provider Agreement and Registration Form. When parents/caretakers wish to arrange certificate child c are, ensure the p arent s ubmits the infor mation on th e Child Care Certific ate Provider Ag reement an d Registration Form. Send the appropriate form to the Child C are Monitor for CCMIS processing. The monitor will notify the Case Manager when the information is data entered. D. When the monitor notifies the Case Manager that data has been entered in CCMIS, enter effective and expiration dates on the authorization. Effective dates will always start when service is due to begin. In most cases, service will begin either the same day the authorization is completed or on a date in the near future. However, there may be occasions when service will begin prior to the actual date of the child care interview. EXAMPLE 1: The TANF parent who self -initiates a Food S tamp Employment & Training (FS E& T) training or DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS education co mponent. In this ca se, m ake the au thorization e ffective as of the date the p arent st arted the component activity if the parent needed child care for the activity and was financially eligible. EXAMPLE 2: When a Child Care Case Manager receives a protective referral from Family Services after child care services have already started. The ending date for the authorization period means the last day for which Case Managers can authorize care. The authorization period can not exceed the recertification date. This is for all categories of care. As noted above, the ending date will always be the last day of the month of the authorization period. E. Ensure that service is au thorized only for the days and hours that parent/caretakers parents/caretakers actually need care. Therefore, only enter the following on the DCIS II Child Care Authorization Detail screens. 1. the appropriate number of days per week that p arent/caretakers parents/caretakers will need care, for example 1, 2, 3, 4, or 5 days; 2. the appropriate type of care needed, half-day (P), full-day (X), day and a half (T), or two full days (D) (supervisory approval is necessary for T and D care); 3. whether absent days are paid (absent days correspond to the number of autho rized days, however, when care is self-arranged, DSS pays only for the days the child attends care). If a client is authorized for 7 days s/ he does not receive paid absent days; 4. whether extended care is authorized; and 5. whether school care is authorized. F. The remaining fields (Category, Waive Fee Reason, Family Size, and Family Income) of the authorization screen are system completed, depending upon the information previously entered. Press the appropriate key t o post the authorization in the system. Click the ‘save’ button. Complete separate authorizations if there are more children who need care. All child care services must be authorized before parents/caretakers can receive subsidized child care. Parents/ caretakers can choose any provider who is either licensed, licensed exempt or self arranged. No parent/caretaker can receive POC funds to provide child care services to their own children in a home or any other child care facility where the parent/caretaker provides direct care to that child. These children may be able to get [another type of] child care [assistance if their children are placed in another child care setting]. Authorizations always start after service has been approved. The exact date is selected by the parent/caretaker. An authorization ends on the last day of the month of the authorization period. At no time can the authorization period exceed the review date. Child care may be authorized only for the days and hours that parents/caretakers need care. The types of care that can be authorized are part time (P), full day (X), day and a half (T) and double time (D) which is two days. All licen sed and licensed exempt child care providers can receive up to five (5 ) absent days, depending on the number of da ys the child is a uthorized to attend. Children in self arranged care and children authorized for seven (7) days do not receive absent days. DIVISION OF SOCIAL SERVICES Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) ORDER Child Care Subsidy Program NATURE OF THE PROCEEDINGS: Delaware H ealth and Social Serv ices (“Dep artment”) / Division of Soc ial Serv ices in itiated p roceedings to provide information of pu blic interest with respect to the Child Care Subsidy Program regarding Overpayments. The Department’s proceedings were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS The Department published its notice of public comment pursuant to 29 Delaware Code Section 10115 in the July 20 10 Delaware Register of Regulations, r equiring wr itten ma terials a nd su ggestions fr om the pu blic concerning the proposed regulations to be produced by July 31, 2010 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 The proposed change described below amends Child Care Subsidy Program policies in the Division of Social Services Manual (DSSM) regarding Overpayments. Statutory Authority 45 CFR §98.11, Administration under contracts and agreements Summary of Proposed Changes DSSM 11005.4, 11005.4.1, 11005.4.2 and 11005.4.3 [Reserved], Child Care Overpayments: The purpose of this rule change is to clarify current policy guidelines regarding overpayments and to remove the examples. The original text is also reformatted to simplify language and improve readability. SUMMARY OF COMMENTS RECEIVED WITH AGENCY RESPONSE AND EXPLANATION OF CHANGES The Governor’s Advisory Council for Exceptional Citizens (GAC EC) and the State Council for Persons with Disabilities ( SCPD) offered th e follo wing ob servation an d r ecommendation summarized b elow. DSS has considered each comment and responds as follows. First, the introduction, last sentence, reads as follows: “Each in the adult child care household is liable for repayment of the overpayment.” There is ostensibly a word missing from the sentence. Alternatively, perhaps the sentence was intended to read as follows: “Each adult in the child care household is liable for overpayment.” Apart from the wording, we have multiple substantive concerns with the concept embodied in the sentence. Agency Response: DSS thanks you for your recommendation and will revise the sentence to read as follows: “Each adult in the child care household is liable for the overpayment.” A. There is no de finition of “child ca re household”. Th ere a re r eferences to “ a fa mily” [§ §11003.6, 11003.7.2, and 11003.9]. In particular, §11003.9.3 recites as follows: The people whose needs and income are considered together comprise the definition of family size. Family size is the basis upon which DSS looks at income to determine a family’s financial eligibility and the child care parent fee. Imposing liability on everyone in an undefined “household” will predictably result in confusion and fair hearings. Agency Response: The Division thanks you for your response however, the definition of “family size and child care household,” are synonymous. The same people in the “family,’ and the child care household, are defined as the people whose needs and income comprise the definition of family size. Therefore, these same people along with their income make up the “child care household.” B. Section 11003.9.4 identifies minor parents as separate eligibility units under the program “even if they live with their leg al g uardian o r parents”. Th ere is so me “ tension” b etween the regulatory e stablishment o f a separate eligibility unit for minor p arents and the rec ital that “each in the ...household is liable for overp ayment. The co-habiting le gal guardian or gr andparent of child ren ser ved in the p rogram sho uld no t be liable for overpayments. Moreover, the legal basis for imposing liab ility of other non-applicant co-habiting persons is also questionable. Agency Response: DSS thanks you for your response. DSS does not permit dependent minors to apply for benefits on their own. Th e responsible adult(s) in the home must sign a ny application. As such, they take responsibility for any overpayments that occur subsequent to that application. C. There is a lack of due process if everyone in a “household” is liable for an overpayment while notice DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS and opportunity for hearing is only offered to the parent/caretaker under §11005.4.2. Agency Response: The ho usehold issu e is addressed in the responses abo ve. In the case of a responsible adult signing the application for a minor parent the notice and opportunity for hearing is sent to that adult. The notifications are not sent to the minor. Second, in the last paragraph in the regulation, the term “over payments” should be “overpayments”. Agency Response: DSS has reviewed your comments and agrees with your recommendation. The term, “over payments,” will be changed to “overpayments.” Third, DSS is eliminating all examples from the regulation. We encourage the Division to reconsider the value or retaining the examples. Much of the State workforce is aging and retiring. New DSS employees would benefit from the examples which provide easily-understood guidance reflecting long-term practice. Agency Response: The ex amples were re moved from the policy be cause wit h th e p olicy rewritten fo r clarification, there is no need for them. Over time the examples become inaccurate and misleading. The DSS has plans to provide a compilation of examples for staff use outside of the policy manual. FINDINGS OF FACT: The Department finds that the proposed changes as set forth in the July 2010 Register of Regulations should be adopted. THEREFORE, IT IS ORDERED , tha t the p roposed r egulation to a mend the Child Care Su bsidy Program policies regarding Child Care Overpayments is adopted and shall be final effective September 10, 2010. Rita M. Landgraf, Secretary, DHSS DSS FINAL ORDER REGULATION #10-38 REVISIONS: 11005.4 Child Care Overpayments 45 CFR 98.11 A child care overpayment occurs when DSS pays providers for more child care service than parents/caretakers are eligible to receive. The overpayment may result because of agency or parent/caretaker error. EXAMPLE 1: A Case Manager incorrectly enters parent income information resulting in a lower parent fee. After several months, the Case Manager realizes the mistake. Because DSS has already made payment to the provider, the Case Manager must process this change as an overpayment. EXAMPLE 2: A p arent reports income of $500.00 for a family size of three. However , after several months, the Case Manager discovers income actually was $750.00. The lower income resulted in the parent paying a smaller fee than the parent should have paid. Because DSS has already made payment to the provider, the Case Manager must process this change as an overpayment. The CCMIS will not process changes to an authorization for a prior period of time through the Correct Transactions function when the result is negative. A negative change means parents/caretakers receive less service because of a change in circumstances; for example, the change results in the parent paying a higher fee. In these situations, process an overpayment, using the child care overpayment notice and complete a Change Authorization to correct the error for future authorizations. DSS is to attempt recovery in all cases of suspected fraud, in all cases involving current recipients, and in all cases where the overpayment amount would equal or exceed the costs of recovery. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS 11005.4.1Determine the Overpayment Amount Determine the amount of the overpayment by: A. subtracting the difference between what DSS paid the provider versus what DSS should have paid, or B. subtracting the difference between the fee the parent paid and the fee the parent should have paid. EXAMPLE: A child over age two in a center is paid $13.00/day or $299.00 ($13.00 x 23 days) for a full month of child care. The parent paid no fee; DSS paid the full fee. However, the parent should have paid a fee amounting to $1.00/day. DSS should have paid $12.00/day if the parent paid $1.00/day fee, or $276.00 monthly. $299.00 DSS paid 276.00 DSS should have paid 23.00 Overpayment If th is over payment con tinued for six m onths, the to tal o verpayment is $1 38.00. The Ca se Ma nager must complete an overpayment notice, noting the amount of the overpayment and the child care category under which the child received service. DCIS provides case ma nagers with a ccess to the Claims Management func tion of the CCMIS to assist in determining th e ov erpayment a mount. Access is limit ed to child tr ansactions and is inquiry only . The Claims Management function provides access to the actual provider payment. 11005.4.2Overpayment Notices Once the overpayment amount is determined, complete an overpayment notice in detail. Submit the notice to the supervisor who will check it for accuracy. Send the original notice to the parent/caretaker and, after waiting 10 days, send a copy to the Audit and Recovery Unit. Audit and Recovery are responsible for establishing repayment agreements with parents/caretakers and for collecting and tracking payments on overpayment debts. To provide parent/caretakers who disagree with the overpayment amount the opportunity to request a fair hearing, wait 10 days before send ing the co py of th e over payment n otice to Audit and Re covery. Th is allo ws p arents/ caretakers with an opportunity to contact case managers to possibly resolve the matter before intervention by Audit and Recovery. 11005.4.3Role of Audit and Recovery Collection of the overpayment by Audit and Recovery follows current policy as noted in DSSM 7000. Note that DSS can only recoup child care payments from child care benefits. Any attempt to recover child care overpayments from AFDC benefits can only occur if there is a voluntary request from the recipient family. The recipient family can only make such a voluntary request if the child care they were receiving was Food Stamp Employment & Training (FS E&T) -AFDC Child Care, At-Risk, or Transitional Child Care. In ad dition to est ablishing repayment agreements and overseeing the colle ction of over payments, Audit an d Recovery als o i nvestigate overpayments for suspicion of fraud. Case man agers will not make fr aud determinations, but in cases where they suspect fraud, they should notify Audit and Recovery of their suspicions. The Provider Administrator, along with Child Care Monitors, will continue to assume responsib ility for situations involving provider overpayments. A child care overpayment occurs when DSS pays for more child care service than parents/caretakers are eligible to DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS receive. Overpayments may be the result of an agency, provider or parent/caretaker action. DHSS will attempt recovery in all cases of suspected fraud, in all cases involving current recipients, and in all cases where the overpayment amount would equal or exceed the costs of recovery. Each [adult] in the [adult] child care household is lia ble f or re payment of th e overpayment. [In ins tances wher e a legal guardian or p arent is required to sign the child care application, the legal guardian(s) or the parent(s) in the home is responsible for t he overpayment even t hough t he p arent(s) or gu ardian(s) is n ot technically p art of th e c hild care household.] 11005.4.1 Determining the Overpayment Amount To determine the amount of the overpayment subtract the amount that the parent should have paid the provider from the DSS calculated parent fee. The difference is the overpayment amount. 11005.4.2 Overpayment Notices Notify parents/caretakers in writing of any overpayment. The overpayment notice will contain: 1. a statement of the client’s right to a fair hearing as provided in DSSM 5300 2. the method by which s/he may request a fair hearing 3. what to do to continue receiving your benefits after requesting a fair hearing 4. a statement that s/he may represent him/herself or that s/he may be represented by counsel or by another person 5. the reason for the overpayment 6. the amount of the overpayment 7. the overpayment time period 8. the name of the child/ren associated with the overpayment. DSS can o nly recoup child ca re [over payments overpayments] from child care benefits. Any at tempt t o recover child care overpayments from TANF benefits can only occu r if there is a vo luntary request from the recipient family. Audit and Recovery Management Services (ARMS) is th e agency responsible for establishing repayment agreements and the collection of overpayments. 11005.4.3 RESERVED DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL DIVISION OF FISH AND WILDLIFE Statutory Authority: 7 Delaware Code, Sections 903(e)(1)(c); 903(f) (7 Del.C. §§903(e)(1)(c); §903(f)) 7 DE Admin. Code 3541 Secretary’s Order No.: 2010-F-0025 7 DE Admin. Code 3541 Atlantic Sharks Date of Issuance: August 16, 2010 Effective Date of the Amendment: September 11, 2010 Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” o r “ DNREC”) the following findi ngs, re asons and con clusions a re entered a s an Order of the Secretary in the above-referenced rulemaking proceeding. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS Background and Procedural History This Or der con siders p roposed r egulations to ame nd 7 DE Admin. Code 3541, Atlantic Sharks. The Department’s Division of Fish and Wildlife co mmenced the re gulatory develo pment process with S tart Actio n Notice 2010-15. The Dep artment published it s in itial p roposed r egulation Ame ndments in the Ma y 1, 2 010 Delaware Register of Regulations, a nd held a public hearing o n Jun e 21 , 201 0. Th e p ublic h earing r ecord remained open at that time for public comment through June 30, 2010. It should be noted that no members of the public were in attendance at th e hearing held on June 21, 2010, nor was an y public comment received by the Department at any time concerning this proposed promulgation. The Department is proposing to amend Tidal Finfish Regulation 3541 concerning Atlantic Sharks in order to bring D elaware into compli ance with the Atla ntic S tates Mar ine Fisheries Co mmission’s (“ ASMFC”) Interstate Fishery Management Plan (“IFMP”) for Atlantic Coastal Sharks. The IFMP for Atlantic Coastal Sharks specifies which gears tha t fishermen are a uthorized to use in st ate water s on the Atlan tic Coa st. T he gears tha t are authorized by ASMFC are hook and line, gill net, trawl net, short-line, pound net and weir. Presently, Delaware allows the use of hook and line, troll line, dip net, lift net, push net, cast net, spear or harpoon, haul seine, bag net, hoop net, fyke net, fish pot, and gill net for use in state waters to harvest food-fish, which includes sharks. To meet the requirements of the IFMP, Delaware must restrict the commercial gears that may be used for the harvesting of Atlantic coastal sharks to hook and line, and gill net. R ecreational fishermen are restricted to the use of rod and reel and hand line. Fishermen with a federal shark permit who are fishing outside of state waters are not restricted to these gear types and may land sharks using any ge ar that is in accord ance with the r ules and regulations established by NOAA Fisheries. Additionally, the IFMP for Atlantic Coastal Sharks specifies that a federal Commercial Shark Dealer Permit is required to buy and sell any shark caught in state waters. At the present time, the State of Delaware does not require seafood dealers to have this permit to buy and sell shark caught in state waters. Again, these modifications to th e existing sh ark r egulations wo uld br ing Delaware into full complianc e with the IFMP for Atlantic Coas tal Sharks. The Department’s presiding hearing officer, Lisa A. Vest, prepared a Hearing Officer’s Report dated August 6, 2010 ( Report). The Rep ort recommends ce rtain find ings and the a doption of the p roposed Ame ndments as attached to the Report as Appendix A. Findings and Discussion I find that the proposed Amendments are well-supported by the record developed by the Department, and I adopt the Report to the extent it is consistent with this Order. The Department’s experts developed the record and drafted the proposed Amendments. I find that the Department’s experts in the Division of Fish and Wildlife fully developed the record to support adoption of these Ame ndments. With the adoption of this Order, Delaware will (1) allow Delaware to remain in compliance with the ASMFC Plan for Coastal Sharks, as well as the latest addendum to the IFMP for Coastal Shark; and (2) prevent total closure of these fisheries in Delaware by order of the Secretary of Commerce due to lack of compliance with federal regulations concerning this species. In conclusion, the following findings and conclusions are entered: 1.) The Dep artment has jur isdiction und er its st atutory au thority to issue an Or der ado pting these proposed Amendments as final; 2.) The De partment provided ad equate pu blic notice of the pr oposed Amen dments, and pr ovided the public with an adequate opportunity to comment on the proposed Amendments, including at the public hearing held on June 21, 2010; 3.) The Department held a public hearing on June 21, 2010 in order to consider public comment before making any final decision; 4.) The Department’s Hearing Officer’s Report, including its recommended record and the recommended Amendments as set forth in Appendix A, are adopted to provide additional reasons and findings for this Order; 5.) The r ecommended Am endments sh ould be ado pted a s fin al r egulation Am endments becau se Delaware will be able to (1 ) remain in compliance wit h the aforementioned Fish ery Management Plan for this species, as implemented by the ASMFC; (2) prevent total closure of these fisheries in Delaware by order of the Secretary of Commerce due to l ack of compliance with fed eral regulations concerning this species; and, lastly, DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS because (3) the amendments are well supported by documents in the record; 6.) The Department shall submit this Or der approving the final regulation to the Delaware Register of Regulations for publication in its next availableissue, and provide such other notice as the law and regulation require and the Department determines is appropriate. Collin P. O’Mara, Secretary 3541 Atlantic Sharks (Penalty Section 7 Del.C. §936(b)(2)) 1.0 Definitions: “Fillet” shall mean to remove slices of fish flesh, of ir regular size and shape, from the carcass by cuts made parallel to the backbone. “Land or Landing” shall mean to put or cause to go on shore from a vessel. “Management Unit” shall mean any of the non-sandbar large coastal species, small coastal species, pelagic speciesand prohibited species of sharksor parts thereof defined in this regulation. Smooth dogfish (Mustelus canus), although they are a species of shark, are not presently part of the management unit as defined above, and are not subject to minimum size or daily harvest restirctions. They are subject to the provisions of Regulation 3541, Sections 3.0 and 4.0. “Non-Sandbar Large Coastal Species” shall mean any of the following species of sharks or parts thereof: Great hammerhead, Sphyrna mokarran Scalloped hammerhead, Sphyrna lewini Smooth hammerhead, Sphyrna zyqaena Nurse shark, Ginglymostoma cirratum Blacktip shark, Carcharhinus limbatus Bull shark, Carcharhinus leucas Lemon shark, Neqaprion brevirostris Silky shark, Carcharhinus falciformis Spinner shark, Carcharhinus brevipinna Tiger shark, Galeocerdo cuvieri “Pelagic Species” shall mean any of the following species of sharks or parts thereof: Porbeagle shark, Lamna nasus Shortfin mako, Isurus oxyrinchus Blue shark, Prionace qlauca Oceanic whitetip shark, Carcharhinus longimanus Thresher shark, Alopias vulpinus “Prohibited Species” shall mean any of the following species of sharks or parts thereof: Basking shark, Cetorhinidae maximus White shark, Carcharodon carcharias Bigeye sand tiger, Odontaspis noronhai Sand tiger, Odontaspis taurus Whale shark, Rhincodon typus Bignose shark, Carcharhinus altimus Caribbean reef shark, Carcharhinus perezi Dusky shark, Carcharhinus obscurus Galapagos shark, Carcharhinus galapaqensis Narrowtooth shark, Carcharhinus brachyurus Night shark, Carcharhinus siqnatus DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS Atlantic angel shark, Squatina dumerili Caribbean sharpnose shark, Rhizoprionodon porosus Smalltail shark, Carcharhinus porosus Bigeye sixgill shark, Hexanchus vitulus Sevengill shark, Heptranchias perlo Sixgill shark, Hexanchus griseus Longfin mako, Isurus paucus Bigeye thresher, Alopias superciliosus "Sandbar shark" shall mean Carcharhinus plumbeus "Shore fishing" shall mean any fishing that does not take place on board a vessel. The terms "shore fishing" and "shore angler" are synonymous. “Small Coastal Species” shall mean any of the following species of sharks or parts thereof: Bonnethead, Sphyrna tiburo Atlantic sharpnose shark, Rhizoprionodon terraenovae Blacknose shark, Carcharhinus acronotus Finetooth shark, Carcharhinus isodon 3 DE Reg. 1088 (02/01/00) 12 DE Reg. 1517 (06/01/09) 2.0 It shall be unlawful for any person to land, purchase, trade, barter, or possess or attempt to land, purchase, trade, barter, or possess a prohibited species. 3.0 It shall be unlawful for any person to possess the fins from any shark in the management unit prior to landing said shark unless said fins are naturally attached to the body of said shark. 4.0 It shall be unlawful for any person to fish for any shark while in state waters with any fishing equipment or by any method, except: (1) Hook and Line; (2) Gill Net. 45.0 It shall be unlawful for any person to fillet a shark in the management unit prior to landing said shark. A shark may be eviscerated prior to landing said shark, but the head, tail, and fins must remain naturally attached to the carcass, except that commercial fishermen may eviscerate and remove the head of any shark reduced to possession, but the tail and fins must remain attached to the carcass. 12 DE Reg. 1517 (06/01/09) 56.0 It shall be unlawful to release any shark in the management unit in a manner that will not ensure said sharks maximum probability of survival. 67.0 It shall be unlawful for the operator of any vessel without a commercial food fishing license to have on board said vessel more than one non-prohibited shark per trip from among those species in the management unit, regardless of the number of people on board the vessel. In addition each recreational angler fishing from a vessel may harvest and possess one bonnethead, and one Atlantic sharpnose shark per trip. 7.1 It shall be un lawful fo r an y sha rk ca ught in state waters to b e bou ght an d sold with out a fed eral Commercial Shark Dealer Permit. 1 DE Reg. 345 (10/1/97) 3 DE Reg. 1088 (2/1/00) 8 DE Reg. 1718 (6/1/05) 12 DE Reg. 1517 (06/01/09) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS 78.0 It shall be unlawful for any person who has been issued a valid commercial food fishing license while on board any vessel to possess any non-prohibited shark from among those species in the management unit during the remainder of any period after the effective date a commercial quota for that group of sharks has been reached in said period or is projected to be reached in said period by the National Marine Fisheries Service, National Oceanic and Atmospheric Administration and the U.S. Department of Commerce. Further, it shall be unlawful for any person who has been issued a valid commercial food fishing license while on board any vessel to possess any non-sandbar large coastal sharks, small coastal sharts, or pelagic sharks in exesss of current federal daily harvest limits administered by the National Marine Fisheries Service. 12 DE Reg. 1517 (06/01/09) 89.0 It shall be unlawful for any person to engage in a directed commercial fishery for a prohibited species. 910.0 It shall be unlawful for the operator of any vessel without a commercial foodfishing license to have on board said vessel any non-prohibited shark from among those species in the management unit that measures less than 54 inches, fork length (tip of snout to indentation between dorsal and ventral tail lobes), with the exception of Atlantic sharpnose, blacknose, finetooth, bonnethead, and smooth dogfish sharks, for which no minimum size limit applies. 3 DE Reg. 1088 (2/1/00) 1 DE Reg. 850 (1/1/98) 1 DE Reg. 1005 (2/1/98) 12 DE Reg. 1517 (06/01/09) 1011.0 It shall be unlawful for any shore angler without a commercial foodfishing license to take and reduce to possession any non-prohibited shark from among those species in the management unit less than 54 inches, with the exception of Atlantic sharpnose, blacknose, finetooth, bonnethead, and smooth dogfish sharks, for which no size limit applies. 12 DE Reg. 1517 (06/01/09) 1112.0 It shall be unlawful for any shore angler without a commercial foodfishing license to take and reduce to possession more than one non-prohibited shark from among those species in the management unit per day (a day being 24 hours). Recreational shore anglers may also harvest one additional bonnethead, and one additional Atlantic sharpnose shark per day. 8 DE Reg. 1718 (6/1/05) 12 DE Reg. 1517 (06/01/09) 1213.0 It shall be unlawful for any recreational or commercial fisherman to possess silky, tiger, blacktip, spinner, bull, lemon, nurse, scalloped hammerhead, great hammerhead, and smooth hammerhead sharks from May 15 through July 15, regardless of where the shark was caught. Fishermen who catch any of these species in federal waters may not transport them through Delaware state waters during the aforementioned closed season. 12 DE Reg. 1517 (06/01/09) 1314.0 It shall be unlawful for any recreational or commercial fisherman to land or possess any sandbar sharks, except for a commercial fisherman in possession of a valid sandbar shark research permit issued by the National Marine Fisheries Service. There must be a qualified observer aboard any vessel that lands and possesses sandbar sharks fishing under the auspices of a valid federal research permit. 12 DE Reg. 1517 (06/01/09) 1415.0 It shall unlawful for any Delaware recreational or commercial fisherman to land or possess any species of shark in state waters that is illegal to catch or land or possess in federal waters. Presently it is unlawfil for recreational fishermen to take and possess silky sharks in federal waters at any time of the year. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS 12 DE Reg. 1517 (06/01/09) 1516.0 The Department may grant anyone permission to take and possess sharks that would otherwise be illegal to take and possess when used for display and/or research purposes. Applicants will need a current State of Delaware scientific collecting permit. Applicants must annually report the number, weight, species, location caught, and gear used for each shark collected for research or display purposes, and the annual disposition of said sharks throughout the life of each shark so taken. The Division reserves the right to place limits on or deny any request to take prohibited species of sharks under the auspices of a scientific collecting permit. 8 DE Reg. 1718 (06/01/05) 12 DE Reg. 1517 (06/01/09) DEPARTMENT OF TRANSPORTATION DIVISION OF PLANNING Statutory Authority: 17 Delaware Code, Sections 132, 137 and 149; 29 Delaware Code, Section 8404 (17 Del.C. §§132, 137 & 149 29 Del.C. §8404) 2 DE Admin. Code 2311 ORDER 2311 Long-Term Lease Policies and Practices Background The Delaware Department of T ransportation (DelDOT), through its Division of Planning, proposed to adopt regulations to manage its real estate leasing practices and policies. On oc casion, c ircumstances involvin g p arcels of la nd un der DelDOT’s co ntrol ma y p resent an ap propriate opportunity for leasing, as a means of managing the Department’s property assets until they are either needed for implementation of th e State’s tr ansportation pr ogram, or are de termined to be n o lo nger ne cessary for such purposes, and made available for disposition under the provisions of 17 Del.C. Section 137. Public Comment Period The Department took written comments on the proposed changes to its regulations regarding leasing policies and practices from July 1, 2010 through July 31, 2010. The proposed regulations were published in the Delaware Register in the July 2010 issue, Volume 14, on page 21. Summary of the Evidence and Information Submitted Four comments were received, for which the comments and the Department’s responses are set forth below: 1. When someone leases DelDOT property and is going to develop it, it should be a part of the lease, that the Lessee be the re sponsible party for any and all maintenance of storm water structures that may be required. It would appear DelDOT could be further burden to provide yearly maintenance inspections, review site plans , and general responsibility should the Lessee default on the lease. Response: It generally would only be under a long term lease that anyone would develop our property to the point a storm water management pond would be required. In the future we would not lease the property to anyone who would be using our land solely for the placement of a storm water pond on our property rather than their own, or a llow a ny str uctures to b e p laced on ou r leased lan d that co uld result in DelDOT becoming responsible for the maintenance and repair of such structure. 2. When the new Policy mentions using a licensed appraiser, can a DelDOT staff member be that licensed appraiser? DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS Response: No. While DelDOT has qualified staff members who could determine the rental values, it was felt that an independent valuation would be the best way to go. 3. When there is a potential econ omic development opportunity, how will the reduced value rent be determined? Response: The Leasee would advise DelDOT and D EDO of the rent al they w ould be willing to p ay and DEDO will determine the merit of the rent reduction based on the factors it determines warrants a rental reduction 4. The Department cannot accept less than 85% of the approved market value rent and all bids shall begin at that rent. The FHWA has responded that this would be contrary to federal law that states if lands acquired using title 23 funds, DelDOT must receive market value for the property. Response: The 85% rental acceptance should be removed in favor of developing a fair market value rental range. On matters pertaining to social, environmental or economic rent reduction DelDOT must clearly show that an exem ption is in the o verall pu blic inter est fo r so cial, e nvironmental or econo mic pu rposes; n onproprietary governmental use or uses under 23 U.S.C.142 (f) Public Transportation. Our Real estate manual will reflect the criteria for evaluating leasing at less than fair market value. The Department also suggests changing the text of the proposed regulation to note that the FHWA will accept a fair market lease range. In addition, if the Department receives a bid for less than fair market value for a property originally obtained with Federal aid, then it will request permission from the FHWA to lease the property at less than fair market value. Findings of Fact Based on the record in this docket, I make the following findings of fact: 1. The proposed amendments to th e Department’s regulations, to pr ovide for rules regarding its property leasing policies and procedures, are useful and proper, and should be adopted as originally proposed during the comment period process required under the Administrative Procedures Act, except as described in the response to comment 4 above, and as shown in bold text in the adopted regulation text below. 2. The adoption of these proposed regulations is in the best interests of the State of Delaware. Decision and Effective Date Based on the provisions of Delaware law and the record in this docket, I hereby adopt the Leasing Policies and Practices regulations, as set forth in the version attached hereto, to be effective on September 21, 2010. IT IS SO ORDERED this 18th day of August, 2010. Carolann Wicks, Secretary, Delaware Department of Transportation 2311 Long-Term Lease Policies and Practices 1.0 Long-Term Leases Any future lease of [DelDOT Department]-owned pr operty fo r a ter m of five ( 5) yea rs or more inclusive of any r enewal option shall be deemed a "long-term lease", and DelDOT shall follow the regulation below to determine the value of the leasehold interest. This regulation shall not apply to any leaseback tran sactions; i.e. any lea se by and between DelDOT and the owner /tenant in lega l occupancy on the date the property was originally acquired by DelDOT. 2.0 Competitive Sealed Bid Process Unless DelDOT seeks to proceed under 3.0 below, DelDOT will provide an opportunity for parties to publicly bid on the lease of the property through a competitive sealed bid process. DelDOT shall retain the right to reject all bids. Notice of the proposed leasin g will be advertised at least twenty (20) days prior to bid opening in a newspaper of general circulation in the county in which the parcel is located. Conspicuous notice shall also be displayed on the property in question at least 20 days prior to bid opening. The second notice will be published approxim ately ten (10) days prior to bid opening in a newspaper of general circulation in the county in which the parcel is located. [DelDOT Department] DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 FINAL REGULATIONS shall offer the property for lease [beginning] at not less than [85 percent of] the [lowest] approved market value [rent range] established by a licensed [fee] appraiser. 3.0 Economic and Civic/Benevolent Purpose Consideration. 3.1 In the event DelDOT should be asked by a party or otherwise consider entering into a long-term lease for economic development c onsideration or civic/benevolent purposes, DelDOT w ill first determine market valu e r ent through a licensed ap praiser. For pu rposes of this r egulation, an economic development or civic/benevolent purpose proposal is defined as changes to material conditions under the lease that result in less direct monetary value to DelDOT in exchange for the development of jobs, economic g rowth an d/or the fu rtherance of a ci vic/benevolent purpose. Th e pu rpose of this valu e determination is to allow for a fair, thorough and transparent consideration of the proposed incentive or grant being considered. 3.2 In cases where the request inv olves a p otential e conomic de velopment op portunity, De lDOT, a fter making the value determination referenced above, shall refer the matter to the Delaware Economic Development Office ("DEDO") for its determination of whether the economic development benefits justify the value of the reduced lease. To the extent DEDO r ecommends moving forward with the lease transaction, DEDO and DelDOT shall first present such proposal to the Council on Development Finance ("CDF") fo r CDF revie w an d ap proval, following the re quired notice pr ovisions for CDF proceedings. In addition, DelDOT shall provide conspicuous notice on the property in question at least 20 day prior to the CDF meeting where the proposal is considered. If approved by the CDF, DelDOT may enter into the lease agreement on the condition that the nature of the lease, terms of rent and other material conditions are consistent with the recommendations of DEDO and approval of CDF. DelDOT will continue to manage the properties during the lease term. 3.3 In the cases where the request involves a potential civic or other benevolent purpose, DelDOT shall hold a public meeting in the general vicinity of property in question. The notice shall clearly state the proposed lessee, the proposed lease term, the estimated value of the reduced lease terms and such notice will be advertis ed at least twenty (20) days prior to the hearing in a newspaper of general circulation in the county in which the parcel is located. Conspicuous notice shall also be displayed on the property in question at leas t 20 day s pri or to bid opening. A second notice will be published approximately ten (10) days prior to bid opening in a newspaper of general circulation in the county in which the parcel is located. In addition, DelDOT shall notify in writing and seek input from the elected State Representative and Senator of the district where the property is located. Upon conclusion of the hearing and a period of 10 days for additional written comments, the Secretary will determine whether or not DelDOT will lease the property as proposed. 4.0 General Policies Governing Long-Term Leases of DelDOT Owned Property 4.1 Form leases shall be prepared by in-house legal counsel. 4.2 All long-term leases or modifications thereof shall require the review of in-house legal counsel and the signature of the Secretary or the Secretary's designee. [4.3 If Federal a id wa s us ed to acquire t he property s uggested f or le ase, DelDOT will request permission from the FHWA to lease the property at less than fair market rental value, if no bids are received in any higher amount.] DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 GOVERNOR’S EXECUTIVE ORDERS STATE OF DELAWARE EXECUTIVE DEPARTMENT DOVER EXECUTIVE ORDER NUMBER TWENTY RE: IN OBSERVANCE OF WAR HERO AND DELAWARE FARMER ROBERT ‘BOB’ MINNER, JR. WHEREAS, Bob Minner has remained dedicated to Delaware agriculture since he started farming near Houston, Delaware with his father in the 1950s until the advent of the Vietnam War; and WHEREAS, following the Vietnam War, Bob Minner chose to return to his Delaware roots and to the present day, Bob Minner continuously farmed more than 400 acres where he produced First Rate From the First State; and WHEREAS, because quality farmland is es sential to the produc tivity and sust ainability of Delaw are agriculture, Bob Minner and his family are actively engaged in permanently preserving their farmland as a legacy for future generations; and WHEREAS, in 1970, Bob Minner entered into a more than 40-year direct store delivery relationship with Acme Markets in the region through which he helped establish a clear connection between the agriculture community of Delaware and the food Delawareans put on their tables by providing a large volume of produce from his own fields, such as watermelons, cantaloupes, squash, pumpkins and gourds, to the markets; and WHEREAS, over the course of these 40 years, Bob Minner helped his fellow Delaware farmers by purchasing produce from them, $75,000-80,000 annually, for direct store delivery to Acme Markets; and WHEREAS, the success of the great heritage of Delaware agriculture through the years depended on men and women with Bob Minner’s knowledge and education. Now, Therefore, We, Jack A. Markell, Governor, and Matthew Denn, Lieutenant Governor, do hereby declare August 12, 2010 Bob Minner Day in the State of Delaware and urge all Delawareans to follow his example of courage, dedication and hard work. Jack A. Markell, Governor DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 CALENDAR OF EVENTS/HEARING NOTICES DELAWARE RIVER BASIN COMMISSION PUBLIC NOTICE The Dela ware River Basin Comm ission will hold a pub lic hearing an d bu siness meeting on Wednesday, September 15, 2010 beginning at 10: 30 a.m. The meeting will be held at the West T renton V olunteer Fire Company, W est Uppe r Ferry Roa d, W est T renton, NJ. Fo r m ore in formation, visit the DRBC web site at www.drbc.net or contact Pamela M. Bush, Esq., Commission Secretary and Assistant General Counsel, at 609 883-9500 extension 203. DEPARTMENT OF AGRIGULTURE HARNESS RACING COMMISSION 501 Harness Racing Rules and Regulations PUBLIC NOTICE The Delaw are Harness Racing Co mmission, pu rsuant to 3 Del.C. §10 005, pro poses to cha nge it s Rule 7.6.6.7.7. The Commission will hold a public hearing on the proposed rule changes on October 12, 2010. Please note this date has been changed from the previous posting of August 10, 2010.) Written comments sho uld b e sent to Hu gh J. Gallagher, Admin istrator of Harness Racing, Dep artment of Agriculture, 2320 S. D uPont Highway, Dover, DE 19901. Written comments will be accepted for thirty (30) days from the date of publication in the Register of Regulations on September 1, 2010. The proposed ch anges a re for the purpose o f updating the Rules a nd to m ore a ccurately reflect cur rent policies, pr actices a nd p rocedures. Copies a re pu blished on line at th e Register of Regulations we bsite: http:// regulations.delaware.gov/services/current_issue.shtml A copy is also available for inspection at the Harness Racing Commission office. DEPARTMENT OF EDUCATION PUBLIC NOTICE The State Board of Education will hold its monthly meeting on Thursday, August 20, 2010 at 1:00 p.m. in the Townsend Building, Dover, Delaware. DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF MEDICAID AND MEDICAL ASSISTANCE School-Based Wellness Center Clinic Services PUBLIC NOTICE In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) with 42 CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is amending the Title XIX Medicaid State Plan to update the reimbursement methodology for School-Based Wellness Center Clinic 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, Planning & Policy Development Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4454 by September 30, 2010. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 CALENDAR OF EVENTS/HEARING NOTICES DEPARTMENT OF INSURANCE 908 Freedom of Information Requests PUBLIC NOTICE INSURANCE COMMISSIONER KAREN WELD IN STEWART, CIR-ML hereby gives notice of intent to adopt Department of Insurance Regulation 908 relating to requests from the public for information under the Freedom of Information Act. The docket number for this proposed amendment is 1379. The purpose of the proposed Regulation 908 is to establish procedures for providing information requested by the public and guaranteeing that information that is provided can be provided and, if so, is provided in a ti mely fashion. The text of the proposed regulation is reproduced in the September 2010 edition of the Delaware Register of Regulations. The text can also be viewed at th e De laware In surance Commission er’s we bsite at: http:// www.delawareinsurance.gov/departments/documents/ProposedRegs/ProposedRegs.shtml. The Department of Insurance does not plan to hold a public hearing on the proposed changes. Any person can file written comments, suggestions, briefs, compilations of data or other materials concerning the proposed amendments. Any written submission in response to this notice and relevant to the proposed changes must be received by th e De partment of Insur ance no later th an 4:00 p .m., Monday Octo ber 4 , 20 10, and sho uld be addressed to Mitch Crane, Esquire, Delaware Department of Insurance, 841 Silver Lake Boulevard, Dover, DE 19904, or sent by fax to 302.739.2021 or email to mitch.crane@state.de.us. DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL DIVISION OF AIR AND WASTE MANAGEMENT 1138 Emission Standards for Hazardous Air Pollutants for Source Categories REGISTER NOTICE Under Section 112(k) of the 1990 Clean Air Act Amendments, Congress mandated that the EPA identify 30 or more hazardous air pollutants (HAPs) that posed the greatest threat to public health in urban areas, to identify the small area sources that emit those HAPs, and to develop regulations to reduce the emissions of those HAPs. In 1999, the EPA identified 33 HAPs that posed the greatest threat to public health and has, since that time, identified over 60 new area source categories for which regulations are being developed. On December 2, 2009, the EPA promulgated another of these area source category standards that will affect existing and fu ture Delaware sources, th e ar ea so urce standard for asp halt p rocessing a nd asphalt r oofing products manufacturing operations under 40 CFR Part 63 Subpart AAAAAAA. Delaware is proposing to amend Regulation 1138 by adding a new Section 16 that covers asphalt processing and asphalt roofing products manufacturing operations. The purpose of this proposed amendment is to provide increased protection for Delaware citizens against a variety of potential adverse health effects linked to a long term exposure to polycyclic aromatic hydrocarbons, PAHs. Lung cancer is the primary concern. Seven of the PAHs have been classified as Group B2, probable human carcinogens by EPA. The proposed amendment will provide greater consistency b etween Delawar e’s a ir toxics standards fo r the se typ es of op erations a nd the r ecently promulgated federal standard (40 CFR Part 63 Subpart AAAAAAA) on which this proposed amendment is heavily based. In addition, this amendment proposes to include a more health protective requirement that currently exists in similar area source air toxics standards found in Regulation 1138 and other Delaware air regulations. Statements a nd te stimony ma y be presented eithe r o rally or in wr iting a t a pu blic he aring to be he ld on Wednesday, September 22, 2010 beginning at 6:00 PM in the DNREC’s Grantham Lane Conference Room, 715 Grantham Lane, New Castle, DE. Interested parties may submit comments in writing to: Jim Snead, DNREC Division of Air Quality, 715 Grantham Lane, New Castle, DE 19720. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 CALENDAR OF EVENTS/HEARING NOTICES DEPARTMENT OF STATE DIVISION OF HISTORICAL AND CULTURAL AFFAIRS 100 Historic Preservation Tax Credit Program PUBLIC NOTICE The Histor ic Pre servation Tax Cred it Act (3 0 Del.C. Ch. 1 8, Su bch. II ) was first en acted by th e Gen eral Assembly in 2001 and was amended in 2002, 2003, 2004, and 2005. Program regulations were adopted on July 11, 2002 (6 DE Reg. 108 published 07/01/02), and were amended on July 11, 2004 (8 DE Reg. 194 published on 07/01/04) and on January11, 2005 (8 DE Reg. 1031 published 01/01/05). The 2010 amendments to the legislation provide for a ten-year extension to the Historic Preservation Tax Credit Act, sets aside a portion of the annual cap for projects which will receive a credit award under $300,000 and provides for the Delaware Department of State to report a nnually to the Governor a nd th e Le gislature. Th e pu rpose o f the followin g pr oposed regulatory amendments is to implement the code changes of 2010 and to clarify various sections of the regulations. The proposed amendments address the changes to the way in which credits are awarded under this program in section 7.6, and address the new reporting requirements in §10.0. As to the clarification of the regulations, the proposed amendments modify 31 sections of the regulations (1.0, 3.0, 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 5.11, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 7.0, 7.1, 7.2, 8.2, 8.3, 9.1, 9.3, 9.4), and create nine new sections of the regulations (4.5, 5.4, 5.9, and 7.1- 7.6). The Historic Preservation Tax Credit Act is designed to promote community revitalization and redev elopment through the rehabilit ation of his toric property by providing t ax c redits for expenditures made to rehabilitate any certified historic property. PLEASE T AKE NOTICE , p ursuant to 29 Del.C., Ch. 101, the Division of His torical and Cultural Af fairs proposes to ame nd rules and regulations pursuant to its authority under 30 Del.C. §1815(b). The Division will receive and consider all written comments on the proposed rules and regulations related to implementation of amendments to the Historic Preservation Tax Credit Act. Submit comments to the Division in care of Timothy A. Slavin, Director, Division of Historical and Cultural Affairs, 21 The Green, Dover, DE 19901. The final date to submit comments is September 30, 2010. Anyone wishing to obtain a copy of the proposed amendments to the rules and regulations should notify Timothy A. Slavin at the above address or call 302-736-7400. This notice will be published in two newspapers of general circulation. DIVISION OF PROFESSIONAL REGULATION Gaming Control Board 101 Regulations Governing Bingo PUBLIC NOTICE The Delaware Gaming Board will seek public comments on the issue of whether its current Rule 1.0 in 24 DE Admin. Code 101 should be amended. The rule relates to the definition of “cookie jar bingo” and to the manner of playing cookie jar bingo games. The Board proposes to change the definition of “Cookie Jar Bingo” as it appears therein, to make it clear that the fee to enter to play a cookie jar bingo game must be separately collected and may not be included in any other fees. Persons wishing to present their views regarding this matter may do so in writing by the close of business on or before October 1 to: Delaware Gaming Control Board, 861 Silver Lake Boulevard, Cannon Building, Suite 203, Dover, DE 19904. A copy of these regulations is available from the above address or may be viewed at the Division of Professional Regulation business office at the same address. PUBLIC SERVICE COMMISSION 1008 Regulations Governing Requests Made Pursuant to the Freedom of Information Act PUBLIC NOTICE From time to time, t he D elaware Public Se rvice Co mmission (the “Commission”) r eceives r equests for documents pu rsuant to the Fr eedom of Infor mation Act, 2 9 Del.C. § §10001-10006 (“ FOIA”). Section 10003 of FOIA states that it is the responsibility of public bodies to establish rules and procedures regarding access to public DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010 CALENDAR OF EVENTS/HEARING NOTICES records as well as fees charged for copying such records The Commission proposes rules and regulations applicable to requests made to the Commission, pursuant to the Freedom of Information Act, 29 Del.C. §§10001-10006 (“FOIA”), for public records in the po ssession of the Commission. If you wish to obtain written copies of the Order and the Proposed FOIA Rules, please contact the PSC at (302) 736-7500. Copies are $0.25 per page. Payment is expected prior to copying (if you wish the copies to be mailed) or at the time the copies are retrieved (if you retrieve them in person). You may also download a copy of the Proposed FOIA Rules fr om the Se ptember 20 10 issue of th e Register of Regulations (see http:// regulations.delaware.gov/). The PSC now solicits comments, suggestions, compilations of data, briefs, or other written materials about the Proposed FOIA Rules. If you wish to file any such materials, you should submit an original and ten copies of such written documents on or before September 30, 2010. You should file such materials with the PSC at the following address: Public Service Commission 861 Silver Lake Boulevard Cannon Building, Suite 100 Dover, Delaware, 19904 Attn: Proposed FOIA Rules If possible, you should accompany such written comments with an electronic version of the submission. Such electronic co py m ay b e f iled on a co py-capable CD -Rom dis k or se nt as an a ttachment to an In ternet e-mail addressed to joseph.handlon@state.de.us. If no comments or objections are timely received, the Commission may approve the Proposed FOIA Rules as final without further proceedings. Any individual with a disability desiring to participate in these proceedings or to review the filings should contact the Commission to dis cuss any aux iliary aids or serv ices needed. The PSC’ s toll-free telephone number within Delaware is 1-800-282-8574. The PSC m ay b e reached at ( 302) 73 6-7500 (in cluding text telephone communications). DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 3, WEDNESDAY, SEPTEMBER 1, 2010