DEPARTMENT OF EDUCATION

Office of the Secretary

EMERGENCY

ORDER

612 Possession, Use or Distribution of Drugs and Alcohol

WHEREAS, pursuant to 14 Del.C. §101, the general administration of the educational interests of the State shall be vested in a Department of Education (Department) within the Executive Branch; and

WHEREAS, pursuant to 14 Del.C. §121(a), the Department shall exercise general control and supervision over the public schools of the State; and

WHEREAS, pursuant to 14 Del.C. §122(b)(1) and (b)(2), the Department shall prescribe rules and regulations:

(1) Governing the hygienic, sanitary and protective construction of school buildings; the selection, arrangement and maintenance of school sites and grounds; and the condemnation, for school purposes, of public school buildings that do not conform to such rules and regulations;

(2) Governing the physical inspection of and the protection of the health and physical welfare of public school students in the State; and

WHEREAS, the Centers for Disease Control and Prevention determined that a novel coronavirus ("COVID-19") presents a serious public health threat and, as a result, on March 12, 2020, the Governor issued a Declaration of a State of Emergency for the State of Delaware due to a Public Health Threat ("State of Emergency Order"), which has been modified; and

WHEREAS, the Delaware Department of Health and Social Services' Division of Public Health issued guidance concerning COVID-19 stating in part that individuals need to continue to take precautions like staying at least 6 feet apart from others, wear a face covering, and wash your hands frequently and thoroughly with soap and hot water. If you do not have access to soap and water, use hand sanitizer until you can wash your hands; and

WHEREAS, hand sanitizers are over-the-counter (OTC) drugs regulated by U.S. Food and Drug Administration; and

WHEREAS, the Department is developing recommendations for the opening of Delaware schools for the 2020-2021 academic year; and

WHEREAS, the Department determined that provisions of 14 DE Admin. Code 612 should not inhibit or prohibit districts and charter schools from offering hand sanitizer as a supplemental method to prevent viral spread; and

WHEREAS, on July 15, 2020, the Department determined that the adoption of this amended regulation was necessary to protect the health and physical welfare of Delaware students and promote healthy lifestyles during the State of Emergency and proposed that the adoption of this amended regulation subject to the State Board of Education's approval occur on an emergency basis; and

WHEREAS, in accordance with 29 Del.C. §10119(4), the Department will receive, consider, and respond to petitions by any interested persons for reconsideration or revision of this regulation by addressing the petitions to the attention of the Department of Education, Office of the Secretary, Attn: Regulation Review, 401 Federal Street, Suite 2, Dover, Delaware 19901 or email to DOEregulations.comment@doe.k12.de.us; and

WHEREAS, in accordance with 29 Del.C. §10119(3), this Order shall be effective for 120 days from the date it is executed and may be renewed once for a period not exceeding 60 days; and

WHEREAS, a copy of this Order will be submitted to the Registrar of Regulations for publication in the next issue of the Delaware Register of Regulations.

NOW, THEREFORE, IT IS ORDERED this 16th day of July, 2020 that the following amended regulation, 612 Possession, Use or Distribution of Drugs and Alcohol, attached hereto as Exhibit A shall take effect immediately.

IT IS SO ORDERED the 16th day of July 2020

DEPARTMENT OF EDUCATION

Susan S. Bunting, Ed. D., Secretary of Education

Approved this 16th day of July, 2020.

State Board of Education

*Please Note: Electronic signatures ("/s/") were accepted pursuant to 6 Del.C. §12A-107(d).

612 Possession, Use or Distribution of Drugs and Alcohol

The purpose of this regulation is to outline the minimum requirements to be included in all public school district and charter school policies on the Possession, Use, or Distribution of Drugs and Alcohol.

2.1 The following provisions shall apply to all public school district and charter schools:

2.1.1 The possession, use or distribution of Alcohol, a Drug, a Drug Like Substance, a Look Alike Substance and Drug Paraphernalia are prohibited within the School Environment, unless medically necessary.

2.1.2 Student lockers are the property of the school and may be subjected to search at any time with or without reasonable suspicion.

2.1.3 Student motor vehicle use to and in the School Environment is a privilege which may be extended by school districts or charter schools to students in exchange for their cooperation in the maintenance of a safe school atmosphere. Reasonable suspicion of a student's use, possession or distribution of Alcohol, a Drug, a Drug Like Substance, a Look Alike substance or Drug Paraphernalia in the School Environment, may result in the student being asked to open an automobile in the School Environment to permit school authorities to look for such items. Failure to open any part of the motor vehicle on the request of school authorities may result in the police being called to conduct a search, and will result in loss of the privilege to bring the vehicle on campus.

2.1.4 All Alcohol, Drugs, Drug Like Substances, Look Alike Substances and Drug Paraphernalia found in a student's possession shall be turned over to the principal or designee, and be made available, in the case of a medical emergency, for identification. All substances shall be sealed and documented, and, in the case of substances covered by 16 Del.C. Ch. 47, turned over to police as potential evidence.

The following definitions shall apply to this regulation, unless a specific regulation, statute or the context in which they are used clearly indicates otherwise, and shall apply to all public school districts and charter schools. The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly states otherwise:

"Alcohol" means alcohol or any alcoholic liquor capable of being consumed by a human being, as defined in 4 Del.C. §101 including alcohol, spirits, wine and beer.

“Designated Caregiver” means, pursuant to 16 Del.C. §4902A(5), a person who: who is at least 21 twenty-one (21) years of age unless the person is the parent or legal guardian of a minor who is a qualifying patient; has agreed to assist with a patient's medical use of marijuana; has not been convicted of an excluded felony offense; and assists no more than 5 five (5) qualifying patients with their medical use of marijuana.

"Distribute", "Distributing" or "Distribution" means the transfer or attempted transfer of Alcohol, a Drug, a Drug Like Substance, or Drug Paraphernalia to any other person with or without the exchange of money or other valuable consideration.

"Drug" means any controlled substance or counterfeit substance as defined in 16 Del.C. §4701 including, for example, narcotic Drugs such as heroin or cocaine, amphetamines, anabolic steroids, and marijuana, and shall include any prescription substance which has been given to or prescribed for a person other than the student in whose possession it is found.

"Drug Like Substance" means any noncontrolled and nonprescription substance capable of producing a change in behavior or altering a state of mind or feeling, including, for example, some over the counter cough medicines, certain types of glue, caffeine pills and diet pills. The definition of Drug Like Substance does not include tobacco or tobacco products which are governed by 14 DE Admin. Code 877 Tobacco Policy.

"Drug Paraphernalia" means all equipment, products and materials as defined in 16 Del.C. §4701 including, for example, roach clips, miniature cocaine spoons and containers for packaging Drugs.

“Hand Sanitizer” means a commercially available health care topical antiseptic product with at least 60% ethanol or 70% isopropyl alcohol content.

"Look Alike Substance" means any noncontrolled substance which is packaged so as to appear to be, or about which a student makes an express or implied representation that the substance is, a Drug or a noncontrolled substance capable of producing a change in behavior or altering a state of mind or feeling. See 16 Del.C. §4752A.

“Medical Marijuana Oil” means as defined in 16 Del.C. §4902A(10).

"Nonprescription Medication medication" means any over the counter medication that can be sold legally without a prescription; some of these medications may be a "Drug Like Substance. this definition may include a Drug Like Substance but excludes Hand Sanitizer.

"Possess" "Possessing" or "Possession" means that a student has on the student's person, in the student's belongings, or under the student's reasonable control by placement of and knowledge of the whereabouts of, Alcohol, a Drug, a Drug Like Substance, a Look Alike Substance, or Drug Paraphernalia.

"Prescription Medication(s) medication" means any substance obtained directly from or pursuant to a valid prescription or order of a practitioner, as defined in 16 Del.C. §4701(24), while acting in the course of his or her professional practice, and which is specifically intended for the student in whose possession it is found a legal drug that has a written order for a student by a licensed health care provider licensed to prescribe medication.

“Relative Caregiver” means an individual who meets the criteria and requirements of 14 Del.C. §202 (f)(1).

"School Environment" means within or on school property, and at school sanctioned or supervised activities, including, for example, on school grounds, on school buses, at functions held on school grounds, at extra curricular extra-curricular activities held on and off school grounds, on field trips and at functions held at the school in the evening.

"Use" means that a student is reasonably known to have ingested, smoked or otherwise assimilated Alcohol, a Drug or a Drug Like Substance, or is reasonably found to be under the influence of such a substance.

3.1 The following provisions shall apply to all public school district and charter schools:

3.1.1 The possession, use or distribution of Alcohol, a Drug, a Drug Like Substance, a Look Alike Substance and Drug Paraphernalia are prohibited within the School Environment, unless medically necessary.

3.1.2 Student lockers are the property of the school and may be subjected to search at any time with or without reasonable suspicion.

3.1.3 Student motor vehicle use to and in the School Environment is a privilege which may be extended by school districts or charter schools to students in exchange for their cooperation in the maintenance of a safe school atmosphere. Reasonable suspicion of a student's use, possession or distribution of Alcohol, a Drug, a Drug Like Substance, a Look Alike substance or Drug Paraphernalia in the School Environment, may result in the student being asked to open an automobile in the School Environment to permit school authorities to look for such items. Failure to open any part of the motor vehicle on the request of school authorities may result in the police being called to conduct a search and will result in loss of the privilege to bring the vehicle on campus.

3.1.4 All Alcohol, Drugs, Drug Like Substances, Look Alike Substances and Drug Paraphernalia found in a student's possession shall be turned over to the principal or designee, and be made available, in the case of a medical emergency, for identification. All substances shall be sealed and documented, and, in the case of substances covered by 16 Del.C. Ch. 47, turned over to police as potential evidence.

4.1 Each school district and charter school shall have a policy on file and update it periodically. The policy shall include, at a minimum, the following:

4.1.1 A system of notification of each student and their parent, guardian or Relative Caregiver relative caregiver at the beginning of the school year, of the state and district policies and regulations. In addition addition, a system for the notification of each student and their parent, guardian or Relative Caregiver relative caregiver whenever a student enrolls or re enrolls during the school year of the state and district policies and regulations.

4.1.2 A statement that state and district or charter school policies shall apply to all students, except that with respect to children with disabilities, applicable federal and state laws will be followed.

4.1.3 A written policy which sets out procedures for reporting incidents to police authorities, parents, guardians or Relative Caregivers relative caregivers and to the Department of Education, while maintaining confidentiality.

4.1.4 A written policy on how evidence is to be kept, stored and documented, so that the chain of custody is clearly established prior to giving such evidence over to the police.

4.1.5 A written policy on search and seizure.

4.1.6 A program of assistance for students with counseling and referral to services as needed.

4.1.7 A policy in cases involving a Drug Like Substance or a Look Alike Substance for establishing that the student intended to use, possess or distribute the substance as a Drug.

4.1.8 A policy which establishes how Prescription Medications medications and Nonprescription Medications medications shall be handled in the School Environment and when they will be considered unauthorized and subject to these state and local policies.

4.1.9 A policy which sets out the conditions for return after expulsion for Alcohol or Drug infractions.

4.2 Notwithstanding any of the foregoing to the contrary, all policies adopted by public school districts or charter schools relating to the possession or use of Drugs shall permit a student's discretionary use and possession of an asthmatic quick relief inhaler with an individual prescription label, an autoinjectable epinephrine with individual prescription label, or an insulin pump for continuous subcutaneous insulin infusion (“insulin pump”) or Hand Sanitizer; provided, nevertheless, that the student uses the inhaler, autoinjectable epinephrine, or an insulin pump pursuant to prescription or written direction from a state licensed health care practitioner; a copy of which shall be provided to the school district or charter school; and further provided that the parent(s) or legal custodian(s) parents or legal custodians of such student provide the school district or charter school with written authorization for the student to possess and use the inhaler, autoinjectable epinephrine, or an insulin pump at such student's discretion or under the school nurse’s supervision, together with a form of release satisfactory to the school district or charter school releasing the school district or charter school and its employees from any and all liability resulting or arising from the student's discretionary use and possession of the inhaler, autoinjectable epinephrine, or an insulin pump, and further provided that the school nurse may impose reasonable limitations or restrictions upon the student's use and possession of the inhaler, autoinjectable epinephrine, or an insulin pump based upon the student's age, level of maturity, behavior, or other relevant considerations.

4.2.1 Parents or legal custodians shall not be required to provide or sign a form of release where the student's use and possession of an asthmatic quick relief inhaler, autoinjectable epinephrine, or insulin pump is determined by the student's IEP or Section 504 Team to be necessary for the student's educational placement.

4.2.2 Except as provided for in a student's Section 504 Plan or IEP, the school nurse may not unilaterally impose limitations or restrictions on a student's use and possession of an asthmatic quick relief inhaler, autoinjectable epinephrine, or an insulin pump if a Section 504 or IEP Team has determined the use of the medication is necessary for the student's educational placement.

(For students who use prescribed asthmatic quick relief inhalers, autoinjectable epinephrine, or an insulin pump for continuous subcutaneous insulin therapy or Hand Sanitizer, see 14 DE Admin. Code 817, Administration of Medications and Treatments) Treatments.)

4.3 A Designated Caregiver may possess for the purpose of administering and may administer to a minor qualifying patient Medical Marijuana Oil in a school bus and on the grounds or property of the preschool, or primary or secondary school in which a minor qualifying patient is enrolled. The Designated Caregiver shall not be a school nurse or other school employee hired or contracted by a school unless he or she is a parent or legal guardian of the minor qualifying patient, and said parent or legal guardian possesses no more than the number of dose(s) doses prescribed per day of Medical Marijuana Oil which is kept at all times on their person.

5.1 Each local school district and charter school shall have an electronic copy of its current possession, use and distribution of Drugs and Alcohol policy on file with the Department of Education.

5.2 When a local school district or charter school revises its possession, use, and distribution of Drugs and Alcohol policy, it shall notify the Department of Education of the revised policy within thirty (30) days of the revision, even if the revision was made because of changes in federal, state or local law, regulations, guidance or policies.