19 Del. Admin. Code — Labor

1000 Department of Labor

1100 Division of Employment and Training

1101 Apprenticeship and Training Regulations

19 Del. Admin. Code § 1101-1.0 Purpose and Scope

1.1 Section 204, Chapter 2, Title 19, Delaware Code authorizes and directs the Department of Labor to formulate regulations to promote the furtherance of labor standards necessary to safeguard the welfare of Apprentices and to extend the applications of such standards by requiring their inclusion in apprenticeship contracts.

1.2 The purpose of this chapter is to set forth labor standards to safeguard the welfare of Apprentices and to extend the application of such standards by prescribing policies and procedures concerning the registration of acceptable Apprenticeship Programs with the Delaware Department of Labor.

1.3 These labor standards and procedures cover the Registration and Cancellation of Apprenticeship Agreements and of Apprenticeship Programs; and matters relating thereto. Any questions [and/or] to request a copy of Delaware's Prevailing Wage Regulations regarding the employment of apprentices on state-funded construction projects must be referred to:

Delaware Department of Labor

Office of Labor Law Enforcement

225 Corporate Blvd.

Newark, DE 19702

(302) 451-3423

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-2.0 Declaration of Policy

2.1 It is declared to be the policy of this State to:

2.1.1 encourage the development of an apprenticeship and training system through the voluntary cooperation of management and workers and interested State agencies and in cooperation with other states and the federal government;

2.1.2 provide for the establishment and furtherance of Standards of Apprenticeship and Training to safeguard the welfare of Apprentices and trainees;

2.1.3 aid in providing maximum opportunities for unemployed and employed persons to improve and modernize their work skills; and

2.1.4 contribute to a healthy economy by aiding in the development and maintenance of a skilled labor force sufficient in numbers and quality to meet the expanding needs of industry and to attract new industry.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-3.0 Definitions

3.1 As used in this part:

"Administrator" refers to the Administrator of the Office of Apprenticeship and Training for the State Department of Labor.

"Agreement" refers to a written agreement between an Apprentice and either his/her employer or an Apprenticeship Committee acting as agent for the Employer which contains the terms and conditions of the employment and training of the Apprentice.

"Apprentice" refers to a person at least sixteen years of age who is engaged in learning a recognized skilled trade through actual work experience under the supervision of a Journeyperson. This person must enter into a written Apprenticeship Indenture Agreement with a registered apprenticeship sponsor. The training must be supplemented with properly coordinated studies of related technical instruction. All hours worked by a registered apprentice, while in the employ of the apprentice's sponsor, shall be considered apprenticeship hours to be counted toward wage progression increments and completion of his/ her on-the-job training hours as set forth in the Apprenticeship Indenture Agreement.

“Apprenticeship Standards" refers to the document which embodies the procedure for the selection and the training of apprentices, setting forth the terms of the training, including wages, hours, conditions of employment, training on the job, and related instruction. The duties and responsibilities of the Sponsor, including administrative procedures, are set forth in their company's policies.

"BAT" refers to the U.S. Department of Labor, Bureau of Apprenticeship and Training.

"Cancellation" refers to the deregistration of a Program or the Termination of an Agreement.

"Committee" refers to those persons designated by the Sponsor to act on its behalf in the administration of the Apprenticeship Program. A Committee may be "joint" i.e., it is composed of an equal number of representatives of the employer(s) and of the employee(s) represented by a bona fide collective bargaining agent(s) and has been established to conduct, operate or administer a Program and enter into Agreements with Apprentices. A Committee may be "unilateral" or "non-joint" and shall mean a Program Sponsor in which a bona fide collective bargaining agent is not a participant.

"Council" refers to the Governor's Advisory Council On Apprenticeship and Training.

"Delaware Resident Contractor" includes any general contractor, prime contractor, construction manager, subcontractor or other type of construction contractor who regularly maintains a place of business in Delaware. Regularly maintaining a place of business in Delaware does not include site trailers, temporary structures associated with one contract or set of related contracts, nor the holding, nor the maintaining of a post office box within this State. The specific intention of this definition is to maintain consistency with Title 30, Delaware Code, section 2501(3) "Resident Contractor".

"Director" refers to the Director of the Division of Industrial Affairs.

"Division" refers to the Division of Industrial Affairs, Department of Labor, state of Delaware.

“Employer" refers to any person or organization employing an Apprentice, whether or not such person or organization is a party to an Apprenticeship Agreement.

"Journeyperson" refers to a worker who is fully qualified as a skilled worker in a given craft or trade.

"On-site Visit" refers to a visit from a representative of the State of Delaware, Department of Labor, Division of Industrial Affairs to the office and/or the actual field job-site of the Sponsor, for the purposes of inspecting and/or monitoring the progress and training of the Registered Apprentice. This monitoring may include but is not limited to interviewing the Apprentice and the auditing of pertinent documents relative to the maintenance and enforcement of the terms of the Apprenticeship Agreement. On-site visits to the Sponsor's office may occur at the discretion of the Department of Labor. The Sponsor will reimburse any travel-related expenses over $500 associated with on-site visits within sixty (60) days of their completion, or will face program deregistration following a hearing held in accordance with the procedures established in these regulations.

"Program" refers to an executed apprenticeship plan which contains all terms and conditions for the qualifications, recruitment, selection, employment and training of Apprentices, including such matters as the requirements for a written Apprenticeship Agreement.

"Registrant or Sponsor" refers to any person, association, committee or organization in whose name or title the Program is (or is to be) registered or approved regardless of whether or not such entity is an Employer. To be eligible, the Registrant or Sponsor must be a "Delaware Resident Contractor" or hold and maintain a "Delaware Resident Business License” or register their business with the Delaware Secretary of State. To be eligible to be a Registrant or Sponsor, Employer/Business, association, committee or organization must have the training program and an adequate number of Journey persons to meet the ratio requirements as stated for that particular apprenticeable occupation.

"Registration" refers to the acceptance and recording of an Apprenticeship Program by the Delaware Department of Labor, Office of Apprenticeship and Training, as meeting the basic standards and requirements of the Division for approval of such Program. Approval is evidenced by a Certificate or other written indicia documentation. Registration also refers to the acceptance and recording of Apprenticeship Agreements thereof, by the Delaware Department of Labor, Office of Apprenticeship and Training, as evidence of the participation of the Apprentice in a particular Registered apprenticeship Program. In no event shall the State of Delaware subsidize the instruction of any apprentice whose employment is not associated with the payment of income taxes to the State of Delaware, which finances such educational subsidies.

“Registration Agency” means the Office of Apprenticeship or a recognized State Apprenticeship Agency that has responsibility for registering apprenticeship programs and apprentices; providing technical assistance and quality assurance assessments.

"Related Instruction" refers to a formal and systematic form of instruction designed to provide the Apprentice with knowledge of the theoretical and technical subjects related to his/her trade.

"Secretary" refers to the Secretary of Labor.

"Sponsor" means any person, association, committee, or organization operating an apprenticeship program and in whose name the program is (or is to be) registered or approved.

"State" refers to the State of Delaware

"Supervisory Inspection" shall mean the same as "ON SITE VISIT".

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-4.0 Eligibility and Procedure for State Registration

4.1 No Program or Agreement shall be eligible for State Registration unless it is in conformity with the requirements of this chapter, and the training is in an apprenticeable occupation having the characteristics set forth in section 5.0 herein.

4.2 Apprentices must be individually registered under a Registered Program with the State of Delaware, Department of Labor, Division of Industrial Affairs. Reciprocal approval for Federal purposes will be accorded to apprentices, apprenticeship programs and standards that are registered in other States by the Office of Apprenticeship or a Registration Agency if such reciprocity is requested by the apprenticeship program sponsor. Program sponsors seeking reciprocal approval must meet wage and hour provisions and apprentice ratio requirements of Delaware. Programs seeking reciprocal approval must also provide notice to the Department of Labor, Division of Industrial Affairs, Office of Apprenticeship & Training of their arrival prior to commencing work in the State of Delaware, so that the Office of Apprenticeship & Training may investigate their apprenticeship program to ensure that it conforms with the standards of the State in which it is registered. Such investigations may include on-site visits at the discretion of the Office of Apprenticeship & Training. The Sponsor will reimburse any expenses over $500 associated with on-site visits within thirty (30) days of their completion, or will lose the ability to have its apprenticeship program recognized within the State of Delaware. This sanction will occur following a deregistration hearing held in accordance with the procedures established in these regulations.

4.3 The State must be properly notified through the Department of Labor, Division of Industrial Affairs, Office of Apprenticeship and Training of cancellation, suspension or termination of any Agreements, (with cause for same) and of apprenticeship completions. The State will attempt, where applicable, to verify the cause of apprenticeship termination.

4.4 Approved Programs shall be accorded Registration, evidenced by a Certificate of Registration. The Certificate of Registration for an approved Program will be made in the name of the Program Sponsor and must be renewed every four (4) years.

4.5 Any modification(s) or change(s) to registered standards shall be promptly submitted to the State through the appropriate office no later than thirty (30) days and, if approved, shall be recorded and acknowledged as an amendment to such standards.

4.6 Under a Program proposed for Registration by an Employer or Employer's Association, where the standards, collective bargaining agreement or other instrument provides for participation by a union in any way in the operation of the Program, and such participation is exercised, written acknowledgment of a union agreement or "no objection" to the Registration is required. Where no such participation is evidenced and practiced, the Employer or Employer’s Association shall simultaneously furnish to the union a copy of its Program application. In addition, upon receipt of the application for the Program, the State shall promptly send by certified mail to such local union another copy of the Program application and together with a notice that union comments will be accepted for thirty (30) days after the date of the agency transmittal.

4.7 Where the employees to be trained have no collective bargaining agent, a program plan may be proposed for Registration by an Employer or groups of Employers.

4.8 A Sponsor may register Programs in one or more occupations simultaneously or individually with the provision that the Program Sponsor shall, within sixty (60) days of Registration, be actively training Apprentices on-the-job and related study must begin within twelve (12) months for each occupation for which Registration is granted. At no time shall an individual Apprentice be employed in more than one (1) occupation, nor signed to more than one (1) Apprenticeship Agreement at any given time.

4.9 Each occupation for which a Program Sponsor holds Registration shall be subject to Cancellation if no active training of Apprentices on the job has occurred within a consecutive one hundred eighty (180) day period or if no Related Instruction has begun within a twelve (12) month period from the date of Registration or in any twelve (12) month period during the duration of that Agreement.

4.10 Each Sponsor of a Program shall submit to an on-site inspection or supervisory visit and shall make all documents pertaining to the Registered Program available to appropriate representatives of the Apprenticeship and Training Office or designated service personnel upon request.

4.11 Each Sponsor shall be so routinely examined, by the Office of Apprenticeship and Training, at least annually, but not more than every six (6) months, unless a specific violation is suspected or a specific document is being investigated.

4.12 The Sponsor shall notify the State Registration Agency of termination or lay-off from employment of a Registered Apprentice or of the completion of the terms of the Apprenticeship Agreement within thirty (30) calendar days of such occurrence.

4.13 The Sponsor shall notify the State of failure to obtain and register the Apprentice in an approved course of Related Instruction as stated and detailed on the Apprenticeship Agreement within (30) calendar days of such occurrence.

4.14 It shall be the responsibility of the Sponsor to monitor the progress and attendance of the Apprentice in all phases of training such as, but not limited to, on-the-job and/or Related Training.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-5.0 Criteria for Apprenticeable Occupations

5.1 An Apprenticeable occupation is a skilled trade which possesses all of the following characteristics:

5.1.1 It is customarily learned in a practical way through training and a structured, systematic program of on-the-job supervised learning.

5.1.2 It is clearly identified and commonly recognized throughout the industry, or recognized with a positive view towards changing technology or approved by the Delaware Department of Labor, Office of Apprenticeship and Training.

5.1.3 It involves manual, technical or mechanical skills and knowledge which require a minimum of two thousand (2,000) hours of on-the-job training, not including the time spent in Related Instruction.

5.1.4 It customarily requires Related Instruction to supplement the on-the-job training.

5.1.5 It involves the development of skills sufficiently broad enough to be applicable in similar occupations throughout the industry, rather than a restricted application to the products or services of any one company.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-6.0 Standards of Apprenticeship

6.1 The following standards are prescribed for a Program.

6.1.1 The Program must include an organized, written plan delineating the terms and conditions of employment. The training and supervision of one or more Apprentices in an apprenticeable occupation must become the responsibility of the Sponsor who has undertaken to carry out the Apprentice's training program.

6.2 The standards must contain provisions concerning the following:

6.2.1 The employment and training of the Apprentice in a skilled occupation.

6.2.2 an equal opportunity pledge stating the recruitment, selection, employment and training of Apprentices during their apprenticeships shall be without discrimination based on: race, color, religion, national origin or sex. When applicable, an affirmative action plan in accordance with the State's requirements for federal purposes must be instituted.

6.2.3 the existence of a term of apprenticeship, not less than one year or two thousand (2,000) hours consistent with training requirements as established by industry practice - the Delaware Department of Labor intends to continue to use the time based method of determining completion of an Apprenticeship Program.

6.2.4 an outline of the work processes in which the Apprentice will receive supervised work experience and on-the-job training, and the allocation of the approximate time to be spent in each major process.

6.2.5 provision for organized related and supplemental instruction in technical subjects related to the trade. A minimum of one hundred forty-four (144) hours for each year of apprenticeship is recommended. Such instruction may be given in a classroom, through trade, industrial or approved correspondence courses of equivalent value or in other forms approved by the State Department of Labor, Office of Apprenticeship and Training. Every apprenticeship instructor must:

6.2.5.1 Meet the State Department of Education’s requirements for a vocational-technical instructor in the State of registration, or be a subject matter expert, which is an individual, such as a journeyworker, who is recognized within an industry as having expertise in a specific occupation; and

6.2.5.2 Have training in teaching techniques and adult learning styles, which may occur before or after the apprenticeship instructor has started to provide the related technical instruction.

6.2.6 a progressively increasing schedule of wage rates to be paid the Apprentice, consistent with the skill acquired which shall be expressed in percentages of the established Journeyperson's hourly wage.

6.2.7 Minimum Wage Progression for 1 through 7 year Apprentice Program as follows:

6.2.7.1 1 to 7 year programs

6.2.7.2 starting pay must be at least minimum wage

6.2.7.3 final period must be at least 85%

1 YEAR [OR] 2,000 HOUR APPRENTICESHIP PROGRAM:

2 YEAR [OR] 4,000 HOUR APPRENTICESHIP PROGRAM:

6.2.8 that the entry Apprentice wage rate shall not be less than the minimum prescribed by State statute or by the Fair Labor Standards Act, where applicable.

6.2.9 That the established Journeyperson's hourly rate applicable among all participating Employers be stated in dollars and cents. No Apprentice shall receive an hourly rate less than the percentage for the period in which he/she is serving applied to the established Journeyperson's rate unless the Sponsor has documented the reason for same in the individual Apprentice's progress report and has explained the reason for said action to the Apprentice and Registration Agency.

6.2.9.1 In no case other than sickness or injury on the part of the Apprentice, shall a Sponsor hold back an Apprentice's progression more than one period or wage increment without the written consent of the Administrator.

6.2.10 That the established Journeyperson's rate provided for by the Standards be reviewed and/or adjusted annually. Sponsors of Programs shall be required to give proof that all employees used in determining ratios of Apprentices to Journeypersons shall be receiving wages at least in the amount set for Journeypersons in their individual program standards, or are qualified to perform as Journey persons and must be paid at least the minimum journeyperson rate;

6.2.11 That the minimum hourly Apprentice wage rate paid during the last period of apprenticeship not be less than eighty-five (85) percent of the established Journeyperson wage rate. Wages covered by a collective bargaining agreement takes precedent over this section. However, wages may not be below the State's required minimum progression.

6.3 The Program must include a periodic review and evaluation of the Apprentice's progress in job performance and related instruction, and the maintenance of appropriate progress records.

6.4 The ratio of Apprentices to Journeypersons should be consistent with proper supervision, training and continuity of employment or applicable provisions in collective bargaining agreements.

6.4.1 The ratio of Apprentices to Journeypersons shall be one Apprentice up to each five (5) Journeypersons employed by the prospective Sponsor unless a different ratio based on an industry standard is contained in the signed Standards of Apprenticeship Agreement or in these regulations. When Apprentices registered in a Delaware Apprenticeship program are employed in other states, the ratio of Apprentices to Journeypersons shall be determined by the ratios established in those other states.

6.4.2 The following have been recognized to be the industry standard for the listed trades:

Ratio of Apprentice Journeypersons*

1 up to 4

Sheet Metal Worker

1 up to 3

Insulation Worker

1 up to 4

Structural Metal Worker

1 up to 3

Painters, Construction and Maintenance

1 up to 3

Asbestos Worker

1 up to 3

Industrial Maintenance Mechanic

1 up to 3

Plumbers/Pipefitters

1 up to 3

Electrician

1 up to 3

Precision Instrument Repairers

1 up to 3

Glaziers

1 up to 3

Construction Laborer

1 up to 3

Dry Wall Finisher

1 up to 3

Hard Tile Setter

1 up to 2

Roofers

1 up to 1

Sprinkler Fitters

1 up to 1

Child Care Worker

1 up to 1

Elevator Constructor

The ratio has no effect until the second apprentice is registered. Only one Journeyperson is necessary in any trade for the first Apprentice.

6.4.3 Exceptions.

6.4.3.1 If a collective bargaining agreement stipulates a ratio of Apprentices to Journeyperson, it shall prevail provided the Bargaining Ration is not lower than the State standard.

6.4.3.2 A deviation from the established standard may be granted by the Administrator upon written request after considering the needs of the plant and/or trade with consideration for growth, the availability of relevant training, and the opportunity for employment of skilled workers following the completion of their training. Such exception shall last no more than one year but may be renewed upon written request.

6.5 A probationary period shall be in relation to the full apprenticeship term with full credit toward completion of apprenticeship.

6.6 Adequate and safe equipment facilities for training and supervision and safety training for Apprentices on the job and in Related Instruction are required. On-site visits may verify compliance with this section prior to the registration of any sponsor for a Delaware apprenticeship program.

6.7 The required minimum qualifications for persons entering an Apprentice Program must be met.

6.8 Apprentices must sign an Agreement. The Agreement shall directly, or by reference, incorporate the standards of the Program as part of the Agreement.

6.9 Advance standing or credit up to 25% OJT hours of the particular trade term in question for previously acquired experience, training skills, or aptitude for all applicants equally, with commensurate wages for any accorded progression step may be granted. The granting of a greater amount of credit shall be set at the discretion of the Administrator based on supportive documentation submitted by the Sponsor. In no case shall more than one half of the particular trade term in question be granted unless the time in question has been spent in any state or federally registered program.

6.10 When a registered apprentice is no longer employed by a Sponsor, the Sponsor shall determine the time and training earned during his or her employment and send notice of such progress to the Apprenticeship and Training Section of the Delaware Department of Labor and to the apprentice in writing.

6.11 Transfer of Employer's training obligation through the sponsoring Committee if one exists and as warranted, to another Employer with consent of the Apprentice and the Committee or Program Sponsors, with full credit to the Apprentice for satisfactory time and training earned, may be afforded with written notice to, and approval of, the Registration Agency and is evidenced by a new apprenticeship agreement.

6.12 These Standards shall contain a statement of assurance of qualified training personnel.

6.13 There will be recognition for successful completion of apprenticeship evidenced by an appropriate certificate.

6.14 These Standards shall contain proper identification of the Registration Agency, being the Department of Labor, Division of Industrial Affairs, Office of Apprenticeship and Training.

6.15 There will be a provision for the Registration, Cancellation and Deregistration of the Program, and a requirement for the prompt submission of any modification or amendment thereto.

6.16 There will be provisions for Registration of Agreements, modifications and amendments, notice to the Division of persons who have successfully completed Programs, and notice of Cancellations, suspensions and terminations of Agreements an causes therefore.

6.17 There will be a provision giving authority for the termination of an Agreement during the probationary period by either party without stated cause.

6.18 There will be provisions for not less than five (5) days notice to Apprentices of any proposed adverse action and cause therefore with stated opportunity to Apprentices during such period for corrective action.

6.19 There will be provisions for a grievance procedure, and the name and address of the appropriate authority under the program to receive, process and make disposition of complaints.

6.20 There will be provisions for recording and maintaining all records concerning apprenticeships as may be required by the State or Federal law.

6.21 There will be provisions for a participating Employer's Agreement.

6.22 There will be funding formula providing for the equitable participation of each participating Employer in funding of a group Program where applicable.

6.23 All Apprenticeship Standards must contain articles necessary to comply with federal laws, regulations and rules pertaining to apprenticeship.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-7.0 Apprenticeship Agreement

7.1 The Apprenticeship Agreement shall contain:

7.1.1 the names and signatures of the contracting parties (Apprentice and the program Sponsor or Employer), and the signature of a parent or guardian if the Apprentice is a minor;

7.1.2 the date of birth of the Apprentice;

7.1.3 the name and address of the program Sponsor and the Registrant;

7.1.4 the Apprentice's social security number;

7.1.5 a statement of the trade or craft which the Apprentice is to be taught, and the beginning date and term (duration) of apprenticeship;

7.1.6 the number of hours to be spent by the Apprentice in work on the job;

7.1.7 the number of hours to be spent in Related and Supplemental Instruction is recommended to be not less than one hundred forty-four (144) hours per year;

7.1.8 provisions relating to a specific period of probation during which the Apprenticeship Agreement may be terminated by either party to the Agreement upon written notice to the Registrant;

7.1.9 provisions that, after the probationary period, the Agreement may be suspended, canceled or terminated for cause, with due notice to the Apprentice and a reasonable opportunity for corrective action, and with written notice to the Apprentice and the Registrant of the final action taken;

7.1.10 a reference incorporating, as part of the Agreement, the standards of the Apprenticeship Program as it exists on the date of the Agreement or as it may be amended during the period of the Agreement;

7.1.11 a statement that the Apprentice will be accorded equal opportunity in all phases of apprenticeship employment and training without discrimination based on race, color, religion, national origin, marital status, or sex, or disability;

7.1.12 a statement that, if an Employer is unable to fulfill his obligation under his Agreement, the Agreement may, with consent of the Apprentice and Committee, if one exists, be transferred to another Employer under a Registered Program with written notice of the transfer to the Registrant, and with full credit to the Apprentice for satisfactory time and training earned;

7.1.13 the name and address of the appropriate authority, if any, designated under the program to receive, process and make disposition of controversies or differences which cannot be adjusted locally or resolved in accordance with the established trade procedure or applicable collective bargaining provisions;

7.1.14 a statement setting forth a schedule of work processes in the trade or industry in which the Apprentice is to be trained and the approximate time to be spent at each process;

7.1.15 a statement of the graduated scale of wages to be paid the Apprentice and whether or not the required school time shall be compensated;

7.1.16 a statement that in the event the Registration of the Program has been Canceled or revoked, the Apprentice will be notified within fifteen (15) days of the event.

8.0 Complaints

8.1 Any controversy or difference arising under an Agreement which cannot be resolved locally, or which is not covered by a collective bargaining agreement, may be submitted by an Apprentice or his/her authorized representative to the State Registration Agency for review. Matters covered by a collective bargaining agreement, however, shall be submitted and processed in accordance with the procedures therein provided.

8.2 The complaint shall be in writing, signed by the complainant, and submitted by the Apprentice or his/her authorized representative within sixty (60) days of receipt of local decision. The complaint shall set forth the specific problem, including all relevant facts and circumstances. Copies of all pertinent documents and correspondence shall accompany the complaint.

9.0 Related Instruction Requirement

9.1 Regulations concerning Apprentices "attendance and tardiness" policy for related instruction.

9.1.1 A registered Apprentice who misses six (6) classes while enrolled in a related studies program at any of the vocational schools in the three (3) counties of the State of Delaware will be dropped from school. This will result in their Apprenticeship Agreement being terminated by their Sponsor and/or State Registration Agency.

9.1.2 An absence will result when an Apprentice either arrives late or leaves early three (3) times. However, School District Officials may bring to the Administrator's attention, individual cases that may have experienced extenuating circumstances. With the Administrator's approval, such individuals may be granted exemption from this attendance policy.

9.1.3 Courses of fewer sessions will be prorated. Instructors will inform Apprentices of allowable absences.

9.1.4 If you are a Registered Apprentice who is enrolled through a trade union, trade society or any other organization that stipulates attendance rules more stringent than the above, then you are required to follow those regulations.

9.1.5 Related Instruction that is delivered through a state approved "in-house program", correspondence courses or other systems of equivalent value will require the Apprentice to produce a document detailing satisfactory participation and completion.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-10.0 Deregistration by State Registered Program

10.1 It is the policy of this State to discourage violations of the law or these rules and regulations by limiting or revoking the privilege to operate programs when Sponsors demonstrate an indifference to these requirements.

10.2 Where it appears to the Administrator that a program is not being operated in accordance with federal or state law or these rules and regulations, the Administrator shall so notify the Sponsor in writing stating the deficiency and providing a period for corrective action not to exceed 10 days. Such notice shall be sent by certified mail, return receipt requested. The Sponsor shall respond in writing to the letter within 10 days of receipt.

10.3 If the Sponsor fails to correct a deficiency after notice by the Administrator under 10.2, deregistration proceedings will be undertaken.

10.3.1 Voluntary deregistration is available to a Sponsor upon written request to the Administrator. Within fifteen (15) working days of the effective date of deregistration demonstrated by the acknowledgment of the Administrator, the Sponsor must notify all Apprentices of such deregistration, the effective date, and that the deregistration automatically deprives the apprentice of his/her individual registration.

10.3.2 Involuntary deregistration is initiated by the Administrator as follows:

10.3.2.1 If the Sponsor fails to respond to the notice of deficiency, the Administrator shall advise the Sponsor by certified mail, return receipt requested, that the program will be recommended for deregistration unless within 10 days the Sponsor requests a hearing.

10.3.2.2 If the response by the Sponsor to the notice is insufficient to correct the deficiency, the Administrator shall so advise the sponsor by certified mail, return receipt requested. Said letter shall advise the Sponsor that the program will be recommended for deregistration unless within 10 days the Sponsor requests a hearing.

10.3.2.3 If no hearing is timely requested, the Administrator will recommend deregistration to the Secretary. The decision of the Secretary is final and no further appeal is provided. The sponsor will be notified of the effective date of deregistration. In addition, a decision of deregistration and its effective date will be mailed to all Apprentices registered in the program.

10.3.2.4 All recommendations for involuntary deregistration as a result of violations of the Rules and Regulations will include a recommended period of deregistration of up to three (3) years.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-11.0 Hearings on Deregistration

11.1 A deregistration hearing will be scheduled before the Council on Apprenticeship and Training within 45 days of receipt of a timely request by the Sponsor.

11.2 Notice shall be in accord with the provisions of the Administrative Procedures Act.

11.3 Each party shall have the right to present evidence, to be represented by counsel, and to cross-examine witnesses.

11.4 A record from which a verbatim transcript can be prepared shall be made of the hearing. A party may request a transcript at his or her expense.

11.5 At the conclusion of the hearing, the Council will determine, by a majority of the quorum, its recommendation to the Secretary.

11.6 The Council shall submit its recommended findings of fact, conclusions of law, and decision to the Secretary. Said recommendations may be authenticated by the chairperson.

11.7 The decision of the Secretary is final and no further appeal is provided. The decision will by sent by certified mail to the Sponsor. In addition, a decision of deregistration and its effective date will be mailed to all Apprentices registered in the program.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-12.0 Reinstatement of Program Registration

Program deregistered pursuant to this chapter may be reinstated upon presentation of adequate evidence that the Program is operating in accordance with this chapter. Such evidence shall be presented to the Apprenticeship and Training Council, which shall make a recommendation based on said evidence, past records and any other data deemed appropriate. After such presentation, the Council shall make a recommendation to the Secretary as to whether the Program should be reinstated. The Secretary's decision shall be final and binding.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-13.0 Program Registration Denial

13.1 Grounds for denial of program registration include, but are not limited to, violations of apprenticeship standards or of federal or state labor laws in any state by the applicant; failure to comply with on-site visit requests; and failure to reimburse for the costs of on-site visits.

13.2 Any proposed Sponsor may, within fifteen (15) working days, request a hearing before the Apprenticeship and Training Council. If the proposed Sponsor requests a hearing, the Administrator shall advise the chairman of the Council, who shall convene the Council, for a hearing for the purpose of making a determination on the basis of the record and proposed findings of the Office of Apprenticeship and Training. This determination shall be subject to review and approval by the Secretary, whose decision shall be final and binding.

13.3 An applicant who has been denied registration of a program may reapply by demonstrating to the Council at a hearing that the deficiencies that led to the denial of registration have been remedied and the program will operate in accordance with all applicable laws and rules in a manner that safeguards the welfare of the apprentices. The Council will make a recommendation to the Secretary, whose decision shall be final and binding.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

19 Del. Admin. Code § 1101-14.0 Amendment to the Regulations in this Part

The Secretary may, at any time upon his/her own motion or upon written request of any interested person setting forth reasonable grounds therefore, and after opportunity has been given to interested persons to present their views, amend or revoke any of the terms of the regulations contained in this part.

History

19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
19 DE Reg. 194 (09/01/15)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
5 DE Reg. 204 (7/1/2001)
8 DE Reg. 468 (9/1/04)
9 DE Reg. 806 (11/1/05)
10 DE Reg. 1021 (12/01/06)
14 DE Reg. 51 (07/01/10)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
3 DE Reg. 641 (11/1/99)
10 DE Reg. 1021 (12/01/06)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
4 DE Reg. 1852 (5/1/01)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)
9 DE Reg. 806 (11/1/05)
19 DE Reg. 194 (09/01/15)
3 DE Reg. 641 (11/1/99)
19 DE Reg. 194 (09/01/15)

1102 Exemptions for Disabled Workers from the Minimum Wage Act

19 Del. Admin. Code § 1102 Exemptions for Disabled Workers from the Minimum Wage Act

1000 DEPARTMENT OF LABOR

1100 Division of Industrial Affairs

1102 Exemptions for Disabled Workers from the Minimum Wage Act

1.0 Applicability of Regulations

1.1 The Minimum Wage Act of the State of Delaware (Title 19, Delaware Code) among other things, makes substantial revisions in the provision of the Act for employment of disabled persons at special minimum wages. This provision is now codified at Chapter 9, §905 of that Act. It reads as follows:

1.2 For any occupation, the Department may provide by regulations, after public hearing, upon reasonable notice at which any person may be heard, for the employment of individuals whose earning capacity is impaired by age or physical or mental deficiency or injury at such wages lower than the minimum wage rate, under this chapter, as the Department may deem necessary or appropriate to avoid hardship or prevent curtailment of opportunities for employment. No employee shall be employed at wages fixed pursuant to this section except under special license issued under the applicable regulations of the Department. Such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.

2.0 Definitions

“Disabled worker” or “worker” means an individual whose earning capacity is impaired by age or physical or mental deficiency or injury for work (s) he is to perform.

“Disabled trainee” or “trainee” means an individual whose earning capacity is impaired by age or physical or mental deficiency or injury, and who is receiving or is scheduled to receive on-the-job training in industry under any vocational rehabilitation program.

3.0 Application for a Certificate

3.1 Application shall be made to the Department of Labor, Division of Industrial affairs and shall be reviewed by the Secretary or his/her authorized representative.

3.2 The application shall set forth, among other things, the nature of the disability, a description of the occupation at which the worker is to be employed, and the wage the firm proposes to guarantee the worker per hour. The nature of the disability must be set out in detail. Vague statements such as “nervous condition," "physically incapacitated," "slow worker," etc., are not sufficient.

3.3 The application shall be signed jointly by the employer and worker and be returned to the Department by the employer.

4.0 Special Provisions Applicable to Disabled Trainers

4.1 Temporary certificates authorizing the employment of such trainees at wages lower than the minimum wage applicable under the Act shall not be less than 50 percent of such wages paid nondisabled workers in industry in the vicinity for essentially the same type, quality, and quantity of work.

4.2 A temporary certificate will designate the employer, the trainee, and the special minimum wage rate. It shall be valid for a period not to exceed 90 days from the date of issuance.

4.3 A temporary certificate shall not be issued for a trainee if a satisfactory training opportunity for the desired training is available in the community at the minimum wage applicable under the Act as above.

5.0 Conditions for Granting a Certificate

5.1 The application must set forth facts showing:

5.1.1 A special minimum wage is necessary to prevent curtailment of the worker’s or trainee’s opportunities for employment; and

5.1.2 The earning or productive capacity of the worker for the work (s)he is perform is impaired by age or physical or mental deficiency or injury.

6.0 Additional Data When Required

To determine whether the facts justify the issuance of a certificate, the Secretary or his/her authorized representative may require the submission of additional information and may require the worker to take a medical examination.

7.0 Issuance of a Certificate

7.1 If the application and other available information indicate that the requirements of this part are satisfied, the Secretary or his/her authorized representative shall issue a certificate, otherwise, (s) he shall deny a certificate of exemption.

7.2 If issued, copies of the certificate shall be transmitted to the employer and the worker or trainee, and in the case of a certificate for a trainee, to the appropriate vocational rehabilitation agency. If a certificate is denied, the same parties shall be given written notice of the denied, the same parties shall be given written notice of the denial.

8.0 Terms of Certificate

8.1 A certificate shall specify, among other things, the name of the worker or trainee, the occupation in which (s) he is to be employed, the special minimum wage rate (s), and the period(s) of time during which such rate(s) may be paid.

8.2 A certificate shall be effective for a period to be designated by the Secretary or his/her authorized representative. Workers or trainees may be paid special minimum wages only during the effective period of the certificate.

8.3 The wage rate (s) set in the certificate shall be fixed at a figure designed to reflect adequately the individual worker’s or trainee’s earning or productive capacity. No wage rate shall be fixed at less than 75 percent of the applicable minimum wage under the Minimum Wage Act unless after investigation a lower rate appears to be clearly justified. In no event shall such wage be nor less than is commensurate with wages paid nondisabled workers in industry in the vicinity for essentially the same type, quality, and quantity of work.

8.4 In an establishment or a vicinity where non-disabled employees are employed at piece rates in the same occupation, the disabled worker or trainee shall be paid at least the same piece rate earnings or the earnings at the hourly rate specified in the certificate, whichever is the greater.

8.5 No provision of this part, or of any certificate issued under this part shall excuse noncompliance with any Federal, State law or municipal ordinance establishing higher standards.

8.6 The terms or any certificate, including the wage rate (s) specified therein, may be amended by the Secretary or his/her authorized representative upon written notice to the parties concerned if the facts justify such amendment.

9.0 Renewal of a Certificate

9.1 Application for renewal of any certificate shall be filed in the same manner as an original application.

9.2 If an application for renewal has been properly and timely filed prior to the expiration date of a certificate, the certificate shall remain in effect until the application for renewal has been granted or denied.

10.0 Records To Be Kept

10.1 Every employer who employs a disabled worker or disabled trainee pursuant to these regulations shall keep, maintain and have available for inspection by the Secretary or his/her authorized representative a copy of the certificate and all other records required under the applicable provisions of the Minimum Wage Act.

11.0 Review

Any person aggrieved by an action of an authorized representative of the Secretary taken pursuant to this part, may within 15 days after such action, file with the Secretary a petition for review, setting forth grounds for seeking review. If such review is granted, the Secretary or an authorized representative who took no part in the action under review, may to the extent (s)he deems it appropriated, afford other interested persons an opportunity to present data and views.

12.0 Amendment Of This Part

The Secretary may at any time upon his/her own motion or upon written request of any interested person setting forth reasonable grounds therefore, and after opportunity has been given to interested persons to present their views, amend or revoke any of the terms of this part.

13.0 Relation to Other Laws

Nothing contained in this part shall be construed as authorizing any act that is contrary to any Federal or State law or municipal ordinance. These regulations shall not apply to any employer operating under a Certificate of Exemption issued by the U.S. Department of Labor pursuant to the Fair Labor Standards Act. The State of Delaware shall permit the payment of sub-minimum wages in the amount (s) authorized by federal law.

Approved this 4th day of February, 1971: James M. Rosbrow, Secretary of Labor

Amended this 4th day of April, 1990: Jan Ewing Robinson, Secretary of Labor

1103 Worker Adjustment and Retraining Notification (WARN) Regulations

19 Del. Admin. Code § 1103-1.0 Purpose and Scope

1.1 The Delaware Worker Adjustment and Retraining Act, 19 Del.C. Ch. 19, protects workers by requiring employers to provide notification of mass layoffs, plant closings, or relocations at least 60 calendar days in advance. Advance notice allows workers time to adjust, to seek and obtain new employment, and to take advantage of services and benefits offered by the Department of Labor and other service providers, if necessary. This regulation is prescribed pursuant 19 Del.C. §1908(a) to carry out the State WARN Act.

1.2 This regulation establishes basic definitions and standards for giving notice under the State WARN Act, as well as the administrative procedures for the Department to enforce it. The Department's objective is to establish clear principles, broad guidelines, and simple but robust procedures for hearing alleged violations.

History

28 DE Reg. 463 (12/01/24)

19 Del. Admin. Code § 1103-2.0 Definitions

Words and terms defined in 19 Del.C. Ch. 19 shall have the same meaning provided therein. The following words and terms, when used in this regulation, have the following meanings unless the context clearly indicates otherwise:

"Code" means the Delaware Code.

"State WARN Act" means the Delaware Worker Adjustment and Retraining Notification Act, set forth in 19 Del.C. Ch. 19. When used in reference to whether a violation occurred, the term includes this regulation.

History

28 DE Reg. 463 (12/01/24)

19 Del. Admin. Code § 1103-3.0 Provision and Contents of Notice

3.1 Determining Whether and When Notice Is Required

3.1.1 In determining whether notice is required, the employer shall look ahead 30 days and behind 30 days from the date of an employment loss to determine whether any employment actions both taken and planned will, in the aggregate for any 30-day period, reach the minimum numbers to trigger the notice requirement.

3.1.2 For purpose of this section, the term "date" refers to a specific date or to the first day of a 14-day period during which a planned employment loss is expected to occur.

3.1.2.1 If employment losses are planned according to a schedule, the schedule shall indicate the specific employment-loss date or the first day of each 14-day period during which any employment losses are expected to occur.

3.1.2.2 Where a 14-day period is used, notice must be given at least 60 days in advance of the first day of the period.

3.1.3 In the case of the sale of part or all of a business, the employer (seller or buyer) who orders the mass layoff, plant closing, or relocation is responsible for giving the notice. Thus, if the employment loss will occur less than 60 days after the sale closes, the buyer may be responsible for ensuring proper notice is timely given, even though the sale has not yet been completed by the time notice is required.

3.1.4 Employers are encouraged to voluntarily provide notice of employment losses and relocations to employees, the Delaware Department of Labor, and the Delaware Workforce Development Board even if such notice is not required under the State WARN Act. The fact that an employer gives voluntary notice does not relieve the employer of its obligations under the State WARN Act should it become applicable. A voluntary notice that does not meet all the requirements of the State WARN Act and these regulations cannot substitute for notices required under them.

3.1.5 Notice may be given conditionally upon the occurrence or non-occurrence of an event only when the event is definite and the consequences of its occurrence or non-occurrence will necessarily, in the normal course of business, lead to a plant closing, mass layoff, or relocation that will cause an employment loss. For example, if the non-renewal of a major contract will lead to the closing of a plant that produces the articles supplied under the contract 30 days after the contract expires, the employer may give notice at least 60 days in advance of the projected plant closing date, which states that if the contract is not renewed, the plant closing will occur on the projected date.

3.2 Service of Notice

3.2.1 If first class or certified mail is used, notice must be postmarked at least 60 days before the employment loss.

3.2.2 All notices must be sent on official letterhead of the employer and must be signed by an individual with authority to represent the employer in this regard. Notice provided to the Department of Labor must contain the original or digital signature of the employer representative. The employer representative must have the authority to bind the employer and must attest to the truthfulness of all information provided in the notice.

3.2.3 Notice to the Delaware Department of Labor, Division of Employment and Training, WARN Act Administrator should be mailed to:

Delaware Department of Labor

Division of Employment and Training, WARN Act Administrator

4425 N. Market St., 3rd Fl.

Wilmington, DE 19802

3.2.4 Notice to the Delaware Workforce Development Board should be mailed to:

Delaware Department of Labor

Delaware Workforce Development Board

4425 N. Market St., 3rd Fl.

Wilmington, DE 19802

3.3 Contents of Notice

3.3.1 Notice must be specific and based on the best information available to the employer at the time the notice is served.

3.3.2 Notice to affected employees and the representatives of affected employees must include:

3.3.2.1 The name and address of the employment site where the mass layoff, plant closing, or relocation will occur;

3.3.2.2 The name and telephone number of a company official to contact for further information regarding the mass layoff, plant closing, or relocation;

3.3.2.3 A statement as to whether the mass layoff, plant closing, or relocation is expected to be permanent or temporary, whether the planned action will affect identifiable units of employees differently, and if an entire plant is to be closed, a statement to that effect;

3.3.2.4 The expected date of the first separation or when the mass layoff, plant closing, or relocation will commence, and the anticipated schedule for making separations;

3.3.2.5 The expected date when the individual employee will be separated;

3.3.2.6 The name, job title, home address, telephone number, and email address of each planned dislocated worker;

3.3.2.7 An indication whether or not bumping rights exist;

3.3.2.8 General information regarding any payouts, severance packages, job relocation opportunities, and retirement options that will be offered to the dislocated workers;

3.3.2.9 A statement as to whether the employer is self-insured for workers' compensation insurance under 19 Del.C. Ch. 23; and

3.3.2.10 Information concerning unemployment insurance, job training, and re-employment services for which affected employees may be eligible. Such information shall, at a minimum, include the following notice:

You are also hereby notified that, as a result of your employment loss, you may be eligible to receive job retraining, re-employment services, or other assistance with obtaining new employment from the State of Delaware Department of Labor or its workforce partners upon your termination. You may also be eligible for unemployment insurance benefits after your last day of employment. Whenever possible, the State of Delaware Department of Labor will contact your employer to arrange to provide additional information regarding these benefits and services to you through workshops, interviews, and other activities that will be scheduled prior to the time your employment ends. If your job has already ended, you can also access reemployment information and apply for unemployment insurance benefits on the Department's website, or you may use the contact information provided on the website or visit one of the Department's local offices for further information and assistance.

3.3.3 The notice may include additional information useful to the employees; for example, if the planned action is expected to be temporary, the estimated duration, if known.

History

28 DE Reg. 463 (12/01/24)

19 Del. Admin. Code § 1103-4.0 Exceptions

4.1 The State WARN Act establishes 5 exceptions to the 60-day notice requirement:

4.1.1 The "seeking-capital-or-business exception" under 19 Del.C. §1905(a)(1);

4.1.2 The "unforeseen-business-circumstances exception" under 19 Del.C. §1905(a)(2);

4.1.3 The "temporary-employment exception" under 19 Del.C. §1905(a)(3);

4.1.4 The "natural-disaster exception" under 19 Del.C. §1905(a)(4); and

4.1.5 The "strike-or-lockout exception" under 19 Del.C. §1905(a)(5).

4.2 In all cases, an employer invoking an exception bears the burden of proof to show that the requirements for an exception have been met.

4.3 For the seeking-capital-or-business exception, the Code requires an employer to have had a reasonable and good faith belief that giving the required notice would have precluded the employer from obtaining the needed capital or business.

4.3.1 To make this showing, the employer must:

4.3.1.1 Identify the specific actions taken to obtain such capital or business;

4.3.1.2 Show there was a realistic opportunity to obtain the capital or business sought;

4.3.1.3 Show the capital or business sought would have been sufficient to enable the employer to avoid or postpone the plant closing, mass layoff, or relocation; and

4.3.1.4 Show that a potential customer or financing source would have been unwilling to provide the new business or capital if notice were given.

4.3.2 The employer's actions will be viewed in a company-wide context. An employer with access to capital markets or with cash reserves may not avail itself of this exception by looking solely at the financial condition of the single site of employment to be closed.

4.4 For the temporary-employment exception:

4.4.1 The employer must demonstrate that it informed each affected employee at the time of hire that the job was temporary. For purposes of this regulation, "at-will" employment is not temporary employment. Providing notification to at-will employees, at the time of hire or otherwise, that their employment is subject to termination at any time shall not constitute notice that employment is of limited duration.

4.4.2 Employment in an industry that traditionally hires temporary employees does not, in and of itself, render a particular employee's employment temporary.

4.4.3 Employers may not attempt to avoid notice requirements by purporting to convert permanent employment into temporary work.

4.5 For the natural-disaster exception, the Code requires that the mass layoff or plant closing be "due to any form of natural disaster”.

4.5.1 The term "due to" means that the mass layoff or plant closing was would not have occurred but for the natural disaster, and the natural disaster was a substantial factor in bringing about the mass layoff or plant closing.

4.5.2 The term "natural disaster" includes floods, earthquakes, droughts, wildfires, storms, tidal waves, tsunamis, any form of a pandemic declared by the Centers for Disease Control and Prevention, and similar effects of nature.

History

28 DE Reg. 463 (12/01/24)

19 Del. Admin. Code § 1103-5.0 Extensions and Other Changes in Plans

5.1 For purposes of 19 Del.C. §1906, the date a mass layoff originally commenced shall be the date on which the first affected employee was laid off.

5.2 If a mass layoff, plant closing, or relocation is postponed beyond the date of separation or end of the 14-day period stated in the initial notice, additional notice is required.

5.2.1 If the postponement is for less than 60 days, the additional notice shall be given as soon as possible. The additional notice shall include reference to the earlier notice, the date or 14-day period to which the planned action is being postponed, and the reasons for the postponement. The additional notice shall otherwise meet all the requirements of the original notice as to form, delivery, and parties entitled to notice.

5.2.2 If the postponement is for 60 days or more, the additional notice should be treated as a new notice subject to all requirements of 19 Del.C. Ch. 19 and these regulations.

5.3 If, after notice has been given, an employer determines that it will continue operations and the announced plant closing, mass layoff, or relocation will not occur, the employer shall give a notice of rescission to the Department as soon as possible after the decision is made. The notice of rescission shall include reference to the earlier notice and the reason why such action is no longer required.

History

28 DE Reg. 463 (12/01/24)

19 Del. Admin. Code § 1103-6.0 Transfers

For purposes of determining whether an offer to transfer in connection with a relocation or consolidation constitutes an "employment loss" under 19 Del.C. §1903(a)(5)b., a "reasonable commuting distance" will be determined under the totality of the circumstances, including consideration of geographic accessibility of the place of work, the quality of the roads, customarily available transportation, and the usual travel time.

History

28 DE Reg. 463 (12/01/24)

19 Del. Admin. Code § 1103-7.0 Enforcement by the Secretary of Labor

7.1 Investigations

7.1.1 The Department may investigate a suspected violation of the State WARN Act when a complaint is filed or on its own motion, regardless of whether a complaint has been filed.

7.1.2 Consistent with the authority granted under 19 Del.C. Chs. 1 and 19, the Department may exercise the following powers when conducting investigations:

7.1.2.1 Inspect records, including any information of an employer necessary for determining whether a violation of the State WARN Act occurred or the validity of any defense;

7.1.2.2 Collect facts or statistics, through interviews, requests for information, or similar means;

7.1.2.3 Issue and enforce subpoenas to compel the appearance of witnesses or the production of papers, books, accounts, payrolls, documents, records, or testimony;

7.1.2.4 Administer oaths;

7.1.2.5 Certify to official acts; and

7.1.2.6 Depose witnesses.

7.1.3 In general, subpoenas shall be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. More specifically, subpoenas shall:

7.1.3.1 Be issued in the name of the Department;

7.1.3.2 Direct the person designated to personally appear and give testimony or to produce the items sought;

7.1.3.3 State the time when and place where the person designated must appear or the items sought must be delivered; and

7.1.3.4 Be served either by personal service by any person 18 or more years of age by delivery of a copy thereof to the person named therein, by overnight delivery by commercial courier, or by registered or certified mail, return receipt requested.

7.1.4 The Department shall complete its investigations as promptly as reasonably possible.

7.1.5 If an employer fails or refuses to cooperate with any portion of the Department's investigation, reasonable inferences will be made against the employer on relevant issues. The Department WARN Administrator may rely on those inferences in reaching the preliminary determination, and unless the employer satisfactorily rebuts the inferences by presenting contrary evidence at a hearing, the Secretary also may rely on those inferences in the final order.

7.2 Commencing an Action

7.2.1 Either an affected employee or the Department may commence an action by filing with the Department WARN Administrator a complaint that alleges a violation of the State WARN Act.

7.2.2 A complaint shall be in writing on the form prescribed by the Department.

7.3 Notice of Action or Investigation. The Department shall notify the employer by certified and First-Class mail when a complaint has been filed or an investigation has been initiated.

7.4 Preliminary Determination

7.4.1 After the Department conducts its investigation, the Department WARN Administrator shall issue a preliminary determination as to whether or not the employer violated the State WARN Act. The preliminary determination shall set forth the supporting facts and any recommended penalties.

7.4.1.1 If the Department WARN Administrator determines that no violation occurred, the Secretary shall issue an order dismissing the complaint.

7.4.1.2 If the Department WARN Administrator determines that one or more violations occurred, the employer may request within 20 days of receiving the preliminary determination that the Department schedule an administrative hearing on the violations. The Department shall include a notice of the right to request a hearing and the 20-day deadline in the same mailing as the preliminary determination. If the employer fails to timely request an administrative hearing, the Secretary shall issue a final order finding the employer violated the State WARN Act and awarding appropriate relief, including any civil penalties.

7.4.2 The Department shall provide a copy of the preliminary determination to the employer by certified and First-Class mail as soon as reasonably possible after the conclusion of the investigation.

7.5 Hearings

7.5.1 The Department will promptly schedule requested hearings and shall provide at least 20 days' notice of the hearing. The notice must:

7.5.1.1 Describe the subject matter of the proceedings;

7.5.1.2 Give the date, time, and place of the hearing;

7.5.1.3 Cite 19 Del.C. Ch. 19 and this regulation as the Department's authority to enforce the alleged violations and conduct the proceedings;

7.5.1.4 Inform the employer of the rights to present evidence, to be represented by counsel, and to appear personally or by other representative at the hearing; and

7.5.1.5 Inform the employer of the Department's obligation to reach its final decision based upon the evidence received.

7.5.2 The Secretary may serve as the hearing officer or appoint a designee within the Division of Employment and Training to serve as the hearing officer. The hearing officer will rule upon all motions and questions relating to the administrative hearing. The hearing officer shall not be bound by rules of evidence or procedure. The hearing officer is empowered to:

7.5.2.1 Issue subpoenas for witnesses and other evidence, either on the agency's initiative or at the request of any party;

7.5.2.2 Administer oaths to witnesses;

7.5.2.3 Exclude plainly irrelevant, immaterial, insubstantial, cumulative, and privileged evidence;

7.5.2.4 Limit unduly repetitive proof, rebuttal, and cross-examination;

7.5.2.5 Cause interrogatories to issue and depositions to be taken; and

7.5.2.6 Hold prehearing conferences for the settlement or simplification of issues by consent, for the disposal of procedural requests or disputes, and to regulate and expedite the course of the hearing.

7.5.3 Before the hearing, or at any time directed by the hearing officer, the Department and the employer will exchange documents, records, and other evidence relevant to the matters at issue during the hearing. If a party fails to make the respective items available to the other party, then upon application of the other party, the hearing officer may dismiss the complaint, exclude consideration of the withheld items, make factual inferences against the withholding party on issues relevant to the withheld items, or order other appropriate relief within hearing officer's powers.

7.5.4 Either the Department or the employer may request a continuance or other changes to the timing, manner, or location of the hearing. A request must be made to the hearing officer within a reasonable time prior to the hearing, and the other party may oppose it. When ruling on the request, the hearing officer may consider the sufficiency of the grounds for the request, the length of time appropriate for a continuance, and the degree of prejudice, if any, to the other party.

7.5.5 At the hearing, the parties shall have the opportunity to express all pertinent facts and circumstances; to introduce evidence; to examine and cross-examine witnesses; to advance any arguments without undue interference; and to question or refute any testimony or evidence.

7.5.6 The Department shall have the burden of proving each alleged violation of the State WARN Act by a preponderance of the evidence. The employer shall have the burden of proving that any exceptions apply by a preponderance of the evidence. Likewise, for the purpose of empowering the Secretary with the discretion to reduce the amount of the employer's liabilities or penalties owed for a violation, the employer shall have the burden of proving, by a preponderance of the evidence, that the employer's act or omission constituting the violation was in good faith and that the employer had reasonable grounds for believing the act or omission was not a violation.

7.5.7 The Department shall keep a record of the hearing from which a verbatim transcript can be made. Transcripts will be made at the request and expense of a party.

7.5.8 The Department shall keep a record of each case that includes all notices; correspondence between the Department and the employer; all exhibits, documents, and testimony admitted into evidence; all motions, responses, exceptions, and other similar writings submitted by the parties; and all preliminary determinations, summaries, interlocutory orders, and proposed and final orders.

7.6 Final Orders

7.6.1 If the Secretary's designee served as the hearing officer, the designee shall prepare a proposed order that briefly summarizes the evidence and recommends factual findings based upon the evidence, conclusions of law, and a decision. The Department shall promptly send the proposed order to the employer. Both parties shall have 20 days from the date of the proposed order to submit to the Secretary, in writing, exceptions to, comments on, and arguments respecting the proposed order.

7.6.2 The Secretary shall issue a final order after receiving a preliminary determination where no hearing is requested, after personally conducting a hearing, or after a designee conducts a hearing and the Secretary receives the parties' responses to the designee's proposed order, if any. The final order must be based upon the entire record of the case and, when applicable, the summaries and recommendations provided to the Secretary. The Secretary may rely on hearsay evidence admitted so long as it does not constitute the sole basis for the Secretary's determination. The final order must include:

7.6.2.1 A brief summary of the evidence;

7.6.2.2 Factual findings based upon the evidence;

7.6.2.3 Conclusions of law;

7.6.2.4 A determination as to whether the employer violated the State WARN Act;

7.6.2.5 If asserted by the employer, a determination as to whether any exception applied;

7.6.2.6 If asserted by the employer, a determination as to whether the employer acted or failed to act in good faith and with reasonable grounds to believe the act or omission was not a violation;

7.6.2.7 Awards of any back pay or the value of other liabilities owed to affected employees; and

7.6.2.8 Penalties assessed.

7.6.3 The Secretary shall sign the final order and immediately mail or deliver a copy to each party and each other person requesting it.

7.6.4 The right of a party aggrieved by a final order to seek judicial review is established by statute, 29 Del.C. §10142. Parties should consult the Code and the Superior Court rules for appeal procedures.

History

28 DE Reg. 463 (12/01/24)

1200 Division of Unemployment Insurance

1201 Unemployment Insurance Appeal Board Regulations

19 Del. Admin. Code § 1201-1.0 Definitions

The following words and terms when used in this regulation, have the following meaning:

“Board” shall mean the Unemployment Insurance Appeal Board.

“Chair” shall mean the Chair of the Board.

“Hearing Officer” shall mean the Appeals Referee or the Appeals Referee's designate who heard the initial appeal.

“Hearsay Evidence” shall be such evidence so designated by the Delaware Rules of Evidence (D.R.E.).

“Relevant Evidence” shall mean evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without this evidence, as set forth in D.R.E. 401.

History

6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)

19 Del. Admin. Code § 1201-2.0 Location of Unemployment Insurance Appeal Board

2.1 All correspondence or other papers or documents filed with the Board shall be filed, either by mail or by hand delivery, at the following address: Unemployment Insurance Appeal Board, Department of Labor, 4425 North Market Street, Wilmington, DE 19802. The Board phone number is (302) 761-8370 and the Board’s fax number is (302) 761-6635.

2.2 Notices of Appeal to the Board may be filed, by mail or personal delivery, at any local Unemployment Office or at the Board Office listed at subsection 2.1. All Notices of Appeal must be in writing.

History

6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)

19 Del. Admin. Code § 1201-3.0 Commencement

3.1 A hearing before the Board may be initiated by:

3.1.1 Either party to the action heard by the Hearing Officer upon filing a timely Notice of Appeal with the Board. Any request for appeal by a corporation or other artificial entity must be filed by an owner, officer, or employee of the entity or by an attorney-at-law duly admitted to practice law in the State of Delaware.

3.1.2 A party whose appeal was dismissed by the Hearing Officer for failure of that party to appear at the scheduled hearing before the Hearing Officer, upon filing of a timely Notice of Appeal with the Board, in which case the Board may, at its sole discretion, remand the case to the Hearing Officer for a prompt hearing to make a full and complete record; or

3.1.3 The Board sua sponte with notice to the parties below or their counsel.

History

6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)

19 Del. Admin. Code § 1201-4.0 Hearings

4.1 Purpose. The purpose of a hearing before the Board is to examine the factual and legal bases for the decision rendered by the Hearing Officer. The parties shall not re-litigate the case presented to the Hearing Officer, but may present additional evidence and legal arguments. Both the Hearing Officer's record and any new evidence presented to the Board shall be considered by the Board in making its decision.

4.2 Presence of parties required. All parties to the appeal and any witnesses shall be present in-person at the Board’s hearing. Failure to appear within 10 minutes of the time indicated on the Notice may result in the Board hearing the appeal in absence of the delinquent party or, if the delinquent party is the appellant, dismissal of the appeal.

4.2.1 Parties and witnesses are not permitted to use any cell phones, smart watches, recording devices, or other electronics in the hearing room. This prohibition does not apply to State employees who appear on official business and attorneys.

4.2.2 Parties and witnesses are not permitted to have large bags or backpacks in the hearing room.

4.3 Representation.

4.3.1 At any hearing, a party may represent themselves (appear pro se) or may be represented by an attorney-at-law duly admitted to practice law in the State of Delaware. A corporation or other artificial entity must be represented by an owner, officer, or employee of the entity or by an attorney-at-law duly admitted to practice law in the State of Delaware.

4.3.1.1 Attorneys-at-law should enter their appearance with the Board's secretary prior to the hearing.

4.3.1.2 Only an attorney-at-law may directly question a witness on behalf of a party.

4.3.2 The Board or its attorney may examine any witnesses and move the admissions of documents and things into evidence.

4.4 Continuances, Postponements, and Withdrawals.

4.4.1 Request for continuances or postponements. All request for continuances or postponements are within the discretion of the Chair of the Board.

4.4.1.1 Timing of requests. Applications for a continuance or postponement of any hearing shall be made in writing to the Board's secretary no later than 12:00 p.m. the day prior to the hearing. The request shall state the reasons for which the continuance or postponement is requested.

4.4.1.2 Multiple requests. In the case of multiple requests for continuances or postponements, it is generally the Board's practice to allow each party to make a first request for continuance or postponement based on need so long as the request is made before 12:00 p.m. the day prior to the hearing. Any subsequence requests must include a showing of unanticipated emergency circumstances, e.g., death in the family or severe illness, which must be supported by documentation, and are very rarely granted.

4.4.1.3 Requests not granted. Any requests for continuances or postponements that are not granted may be renewed in person at the Board hearing by a party or its representative. The grant or denial of any requests for continuances or postponements made in person at the Board hearing is within the discretion of the Board.

4.4.1.4 Rescheduling of cases. All cases that are continued or postponed at a party's request will be rescheduled for the next available Board hearing date. Cases will not be rescheduled around a party's availability.

4.4.2 Untimely request for continuances or postponements. The Board does not accept any requests for continuances or postponements received after 12:00 p.m. the day before the hearing date.

4.4.3 Withdrawal of appeals. An appealing party may request to withdraw its appeal at any time prior to hearing. All requests for withdrawal must be made in writing.

4.5 Length of hearing. Hearings are scheduled to last 20 minutes from the time the presiding member calls the case, except that the Board may extend the length of the hearing at its discretion. Hearings where one or both parties are represented by an attorney are scheduled for 40 minutes. Extensions of time are rarely granted.

4.6 Record. A record shall be made of all hearings before the Board. The record may be made either by a stenographic record or by audio recording. The record does not need to be transcribed unless and until an appeal is taken to Superior Court of the State of Delaware from the Board’s decision.

4.7 Evidence.

4.7.1 The Board follows the Delaware Rules of Evidence. The Board may admit and consider hearsay evidence, however, the Board shall not base its decision solely on hearsay or other evidence not admissible under the Rules of Evidence.

4.7.2 The Board may consider any relevant evidence relating to any issue raised below, whether or not that issue was decided by the Hearing Officer.

4.7.3 The admissibility of evidence and determinations of the weight to be given evidence and the credibility of witnesses shall be within the sound discretion of the Board.

4.7.4 Prior to the hearing, the Board may receive evidence by mail, email, or other electronic means. Evidence must be submitted to the Board and any other parties to the hearing at least 7 days prior to the scheduled hearing.

4.7.5 The Board does not permit electronic evidence, such as video or audio, to be submitted or entered into evidence at a hearing.

4.7.6 The Board cannot review evidence submitted by USB drive, CD, or other external electronic devices.

4.7.7 The Board or its attorney may review testimony contained within the record of the proceedings below that was offered by telephone or other electronic means.

4.8 Subpoenas.

4.8.1 A party may request subpoenas to compel a witness or witnesses to appear at a hearing or to compel the production of documents at or prior to a hearing. Such a request shall be in writing, be received by the Board at least 7 days prior to the hearing, and state the full name and address of the person or persons to be subpoenaed or a detailed description of the documents to be produced and the custodian of the documents and the address where the documents are located. The issuance of any subpoenas shall be at the sole discretion of the Board and its attorney. The Board limits witness subpoena requests to two witnesses per party.

4.8.2 The Board sua sponte may issue subpoenas to compel witnesses to appear at a hearing or documents to be produced at or prior to a hearing.

4.9 Written Submissions. The Board or its attorney may at their discretion request written submissions from the parties prior to or following the hearing.

History

6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)

19 Del. Admin. Code § 1201-5.0 Remand

The Board may remand any case to a Hearing Officer at any time and for any purpose at its sole discretion.

History

6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)

19 Del. Admin. Code § 1201-6.0 Decisions

6.1 The Board shall render its decision promptly and issue its decision by mail.

6.2 The Board may affirm, modify, or reverse, in whole or in part, the decision of the Hearing Officer.

6.3 The Board may sua sponte affirm, modify or set aside any decision of an appeal tribunal on the basis of evidence previously submitted, without further hearing, or direct the taking of additional evidence or may permit any of the parties to the decision to initiate further appeal before it.

6.4 Final decisions shall be accompanied by a notice of the right to appeal the Board’s decision to Superior Court of the State of Delaware pursuant to 19 Del.C. §3323(a).

History

6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)

19 Del. Admin. Code § 1201-7.0 Rehearing

At any time subsequent to a Board decision but prior to the Board’s decision becoming final, any party to the appeal may request by motion, with notice to all parties, a rehearing before to Board. The motion shall set forth briefly and distinctly the grounds for the motion. The Board shall promptly consider the motion for reconsideration. A copy of the Board’s decision on the motion for rehearing shall be mailed to all parties or their counsel if represented by an attorney.

7.1 The grant or denial of a motion for rehearing is solely within the discretion of the Board.

7.2 The Board shall not consider any motion for rehearing filed after the Board’s decision has become final.

7.3 The Board shall not consider any motion for rehearing of the Board’s denial of a prior motion for rehearing.

History

6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
26 DE Reg. 487 (12/01/22)
6 DE Reg. 887 (01/01/03)
21 DE Reg. 496 (12/01/17)
24 DE Reg. 286 (09/01/20)
24 DE Reg. 800 (02/01/21)
26 DE Reg. 487 (12/01/22)

1202 Unemployment Insurance Regulations

19 Del. Admin. Code § 1202-1.0 Records

1.1 Each employing unit shall preserve for the period of the last 4 consecutive years such existing records as are indicated in the data hereinafter set forth and shall establish, maintain, and preserve, for a period of 4 years, records with respect to workers engaged in employment on and after the effective date of this regulation which shall show:

1.1.1 For each pay period:

1.1.1.1 The beginning and ending dates of such period.

1.1.1.2 The total amount of remuneration paid for personal services, including commissions.

1.1.2 For each worker:

1.1.2.1 Their name and Social Security Number.

1.1.2.2 Their wages paid for each pay period, showing separately:

1.1.2.2.1 Remuneration including commissions paid in cash.

1.1.2.2.2 Reasonable cash value of remuneration payable by the employer in any medium other than cash.

1.1.2.2.3 Gratuities received from persons other than the employer.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-2.0 Definition of Terms

“Payroll period" means that period of time for which an employer customarily makes a single payment or credit of remuneration to all or a group or groups of its employees.

A "quarter" or "calendar quarter" means one of the four periods of three consecutive calendar months which begin, respectively, on January 1, April 1, July 1, and October 1.

"Wages paid" means:

(a) Wages actually paid, to the employee; or

(b) Wages credited to the account of or set apart for the employee so that they may be drawn upon by the employee at any time although not then actually reduced to possession. To constitute payment in such a case the wages must be credited or set apart to the employee without any substantial limitation or restriction as to the time or manner of payment or condition upon which payment is to be made, and must be made available to the employee so that they may be drawn at any time, and their receipt brought within the employee’s control and disposition.

"Wages paid in a quarter" means the total of all wages paid or accredited in accordance with subsections (a) and (b) of this section on any day falling within the calendar quarter.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-3.0 Reports and Payments of Contributions

3.1 Contributions due under Part III, Title 19, Delaware Code, shall be payable quarterly based on "wages paid in a quarter” as set forth in Section 2.0 of this regulation.

3.2 Employers subject to Part III, Title 19, Delaware Code, shall report contributions due on forms prescribed or approved for this purpose by the Delaware Division of Unemployment Insurance and in accordance with instructions printed thereon (Form UC-8). Such reports shall be accompanied by payment of contributions.

3.3 Reports and payments of contributions shall become due on the last day of the month following the close of the quarter during which the wages are paid.

3.4 Reports and payments of contributions by an employer not previously subject to Part III, Title 19, Delaware Code, shall become due for the first time on the last day of the month following the close of that calendar quarter during which the 20th week of employment of one or more persons during the calendar year occurred. The employer shall at such time file separate reports with respect to each of the calendar quarters during the calendar year for which contributions are payable.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-4.0 Identification of Workers Covered by Part III, Title 19, Delaware Code

4.1 Each employer shall ascertain the Social Security Number of each worker employed by the employer in employment subject to Part III, Title 19, Delaware Code.

4.2 The employer shall report the worker's Social Security number in making any report required by the Delaware Division of Unemployment Insurance with respect to a worker.

4.3 If an employer has in its employ a worker engaged in employment who does not have a Social Security number, such employer shall request the worker to show a receipt issued by an officer of the Social Security Administration acknowledging that the worker has filed an application for a Social Security number. The receipt shall be retained by the worker. In making any report required by the Delaware Division of Unemployment Insurance with respect to such a worker, the employer shall report the date of issue of the receipt, its termination date, the address of the issuing office, and the name and address of the worker exactly as shown in the receipt.

4.4 If a worker fails to report to the employer his correct Social Security number or fails to show the employer a receipt issued by an office of the Social Security Administration acknowledging that he has filed an application for a Social Security number, the employer shall inform the worker of the requirement to do so under the Federal Insurance Contributions Act.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-5.0 Posting of Placards and Notice to Employee Required in all Separations

5.1 Every employer subject to the provisions of Part III Title 19, Delaware Code, shall post and maintain printed notices to his employees informing them that he is covered by Part III, Title 19, Delaware Code, and has been so registered by the Delaware Division of Unemployment Insurance. Such notices shall be in the form prescribed by the Delaware Division of Unemployment Insurance (Form UC-6), of such design and in such numbers as prescribed by the Delaware Division of Unemployment Insurance, and shall be posted in a conspicuous place in the plant, shop, office, room, or place where employees are employed and where they may readily be seen by them. No such notice shall be posted by any person, employing unit, or employer who has not complied with the provisions of Part III, Title 19, Delaware Code, and to whom an unemployment insurance account number has not been assigned by the Delaware Division of Unemployment Insurance, or who, in accordance with the provisions of the Delaware Code, has ceased to be an employer as defined in the Delaware Code.

5.2 Each employer shall deliver to each employee separated from its employ (permanently, for an indefinite period or for an expected duration of 7 days or more) at the time of such separation, or, if in person delivery is impossible or impracticable, shall mail to such employee's last known address, within 24 hours, a copy of Form UC-300, which shall instruct such former employee how to file a claim for unemployment benefits and how to contact the Delaware Division of Unemployment Insurance with questions about unemployment benefits.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-6.0 Claims and Registrations

REFERENCE: Section 3315, Title 19, Delaware Code Eligibility for Benefits

6.1 Except as otherwise provided in this regulation, any individual claiming benefits shall:

6.1.1 File a claim for benefits, either in-person at a Delaware Division of Unemployment Insurance Local Office or via the Internet (such claim shall be effective as of the Sunday immediately preceding the date of filing) and

6.1.2 Register for work with the Delaware Division of Employment & Training.

6.2 Except as otherwise provided in this regulation, in order to establish eligibility for benefits, the claimant shall:

6.2.1 Report to a Delaware Division of Unemployment Insurance or Delaware Division of Employment & Training Local Office whenever instructed to do so by either Division; and

6.2.2 File a continued claim for benefits each week; and

6.2.3 the fact that they are able to work, available for work and actively seeking work each week.

6.3 A claimant will be ineligible for the receipt of unemployment insurance benefits for any week in which they are not able to work, available for work and actively seeking work, except that they will not be ineligible for such week if the Division of Unemployment Insurance finds that:

6.3.1 the claimant is attached to a job for which the date of return to employment is known and reasonably certain and is sufficiently near in time to make it futile to actively seek work; or

6.3.2 to require the claimant to be able to work, available for work and actively seeking work would be otherwise oppressive or inconsistent with the purposes of Chapter 33 of Title 19, Delaware Code.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-7.0 Address Requirement

A claimant must provide a current address to the Delaware Division of Unemployment Insurance when a new, additional, or reopened claim is filed and provide any change in address thereafter to the Division during the entire length of time they are claiming entitlement to and receiving unemployment insurance benefits.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-8.0 Payments to Interstate Claimants

8.1 The following section shall govern the Delaware Division of Unemployment Insurance in its administrative cooperation with other States adopting a similar regulation for the payment of benefits to interstate claimants.

8.2 Definitions.

As used in this section, unless the context clearly requires otherwise:

"Agent State" means any State in which an individual files a claim for benefits from another State.

"Benefits" means the compensation payable to an individual, with respect to his unemployment, under the unemployment insurance of any State.

"Interstate Benefit Payment Plan" means the plan approved by the Interstate Conference of Employment Security Agencies under which benefits shall be payable to unemployed Individuals absent from the State (or States) in which benefit credits have been accumulated.

"Interstate claimant" means an individual who claims benefits under the unemployment insurance law of one or more liable States through the facilities of an agent State. The term "interstate claimant" shall not include any individual who customarily commutes from a residence in an agent State to work in a liable State unless the Delaware Division of Unemployment Insurance finds that this exclusion would create undue hardship on such claimants in specified areas.

"Liable State" means any State against which an individual files a claim for benefits through another State.

"State” includes Alaska, Hawaii, the District of Columbia, the Virgin Islands and Puerto Rico.

"Week of unemployment" includes any week of unemployment as defined in the law of the liable State from which benefits with respect to such week are claimed.

8.3 Registration for Work

8.3.1 Each interstate claimant shall be registered for work, through any public employment office in the agent State when and as required by the law, regulations, and procedures of the agent State. Such registration shall be accepted as meeting the registration requirements of the liable State.

8.3.2 Each agent State shall duly report, to the liable State in question, whether each Interstate claimant meets the registration requirements of the agent State.

8.4 Benefit Rights of Interstate Claimants.

8.4.1 If a claimant files a claim against any State, and it is determined by such State that the claimant has available benefit credits in such State, then claims shall be filed only against such State as long as benefit credits are available in that State. Thereafter, the claimant may file claims against any other State in which there are available benefit credits. For the purposes of this section, benefit credits shall be deemed to be unavailable whenever benefits have been exhausted, terminated, or postponed for an indefinite period or for the entire period in which benefits would otherwise be payable, or whenever benefits are affected by the application of a seasonal restriction.

8.5 Claim for Benefits.

8.5.1 Claims for benefits or waiting-period shall be filed by interstate claimants on uniform interstate claim forms and in accordance with uniform procedures developed pursuant to the Interstate Benefit Payment Plan. Claims shall be filed in accordance with the type of week in use in the agent State. Any adjustments required to fit the type of week used by the liable State shall be made by the liable State on the basis of consecutive claims filed.

8.5.2 Claims shall be filed in accordance with agent State regulations for intrastate claims in local employment offices, or at an itinerant point, or by mail.

8.5.2.1 With respect to claims for weeks of unemployment in which an individual was not working for his regular employer, the liable State shall, under circumstances which it considers good cause, accept a continued claim filed up to 1 week, or one reporting period, late. If a claimant files more than one reporting period late, an initial claim must be used to begin a claim series and no continued claim for a past period shall be accepted.

8.5.2.2 With respect to weeks of unemployment during which an individual is attached to his regular employer, the liable State shall accept any claim which is filed within the time limit applicable to such claim under the law of the agent State.

8.6 Determinations of Claims.

8.6.1 The agent State shall, in connection with each claim filed by an interstate claimant, ascertain and report to the liable State in question such facts relating to the claimant's availability for work and eligibility for benefits as are readily determinable in and by the agent State.

8.6.2 The agent State's responsibility and authority in connection with the determination of interstate claims shall be limited to investigation and reporting of relevant facts. The agent State shall not refuse to take an interstate claim.

8.7 Appellate Procedure.

8.7.1 The agent State shall afford all reasonable cooperation in the taking of evidence and the holding of hearings in connection with appealed interstate benefit claims.

8.7.2 With respect to the time limits imposed by the law of a liable State upon the filing of an appeal in connection with a disputed benefit claim, an appeal made by an interstate claimant shall be deemed to have been made and communicated to the liable State on the date when it is received by any qualified officer of the agent State.

8.8 Extension of interstate benefit payments to include claims taken in and for Canada. This section shall apply in all its provisions to claims taken in and for Canada.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-9.0 Registration and Claims of Certain Workers Who Become Totally Unemployed Because of a Mass Layoff Due to a Temporary Cessation of Work

The Delaware Division of Unemployment Insurance is authorized to defer registrations for work and to modify the requirements for claiming weekly unemployment insurance benefits for those individuals unemployed because of a temporary mass layoff as provided in this section.

9.1 A temporary mass layoff is defined as a temporary layoff by an employer because of lack of work of 100 or more employees at or about the same time for a period not exceeding 45 consecutive calendar days following the last day of work or 63 consecutive calendar days following the last day of work for 100 or more employees temporarily laid off for a model change or retooling.

9.2 As soon as possible but not later than seven (7) days prior to the last day of work of 100 or more employees, the employer shall notify the Delaware Division of Unemployment Insurance of the last day of work, the reason for the layoff, the schedule date of their return to work and when practical, the names and Social Security numbers of the employees included in the layoff. If the Delaware Division of Unemployment Insurance determines that the layoff meets the requirements of a temporary mass layoff as defined in this section, the employees shall be eligible to file claims for benefits as hereinafter provided.

9.3 The employer shall post instructions furnished by the Delaware Division of Unemployment Insurance in conspicuous areas readily accessible to the employees concerning the proper procedure for filing claims during the layoff period. The employer shall prepare and give each employee unemployed because of the temporary mass layoff on his last day of work, a UC-101-T, “Notice of Temporary Mass Layoff” form to be furnished by the Delaware Division of Unemployment Insurance. However, this form shall not be issued for any employee off from work because of illness, disability, or scheduled vacation with pay on the day the temporary layoff begins. These employees shall be issued the required forms by the employer upon the termination of the period of illness, disability, or scheduled paid vacation.

9.4 A claimant's week of unemployment for the purpose of this section shall be the seven-day consecutive calendar day period used by the employer as his payroll week.

9.5 Registration for work by an individual unemployed because of a temporary mass layoff shall be deferred.

9.6 An original or additional claim will be effective on the first day of the employer's payroll week in which the last day of work occurred if the employer issued a UC-101-T, "Notice of Temporary Mass Layoff” form on the last day of work and the form is filed by the claimant within seven days thereafter. If the employer does not issue the form on the last day of work but the claimant files within seven (7) days thereafter, his original or additional claim will be effective on the first day of employer's payroll week in which his last day of work occurred. Where a claimant is issued the form on his last day of work but fails to file within seven (7) days thereafter, his original or additional claim will be effective on the first day of the employer's payroll week in which he actually files the form. As used herein the word "file" or "filed" shall mean the date on which a UC-101-T, "Notice of Temporary Mass Layoff” form is delivered to the appropriate unemployment insurance local office.

9.7 Weekly benefits shall be claimed using any one of the options provided by the Delaware Division of Unemployment Insurance.

9.8 An individual must report to their unemployment insurance local office when directed to do so by the Delaware Division of Unemployment Insurance.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-10.0 Week Defined

10.1 For the purposes of the claiming and payment of unemployment insurance benefits, "week" means:

10.1.1 Calendar week (beginning 12:01 a.m. Sunday morning); or

10.1.2 Any seven (7) consecutive day period with respect to which no wages are payable to an individual and during which he performs no services, which occurs within two (2) calendar weeks in each of which he earns wages equal to or in excess of his weekly benefit amount plus his partial earning allowance. Claims filed under this provision may be filed within twenty-eight (28) days following the close of the second of the calendar weeks in question; or

10.1.3 The Delaware Division of Unemployment Insurance may authorize the employer's payroll week for the payment of partial claims and temporary mass layoff claims.

10.2 Calendar week shall be used for the filing of claims and the payment of benefits under 1(a) above for all claims filed on or after July 1, 1972, except for those claims in current compensable status which will continue on a flexible week basis for the duration of their current period of unemployment.

10.3 Except in cases where claims are filed under 1(b) or 1(c) above, the claim series will begin with the first day of the calendar week in which an unemployed individual reports and registers and files his initial or reopened claim at a local employment office of the Delaware Division of Unemployment Insurance.

10.4 Whenever the benefit week overlaps two benefit years, such week shall, for the purpose of benefit payment with respect to such week, be deemed to be paid in the preceding benefit year; provided, that when the last day of the preceding benefit year falls within a benefit week with respect to which an individual has met the eligibility requirements of the Act, the ending date of the benefit year may be extended for a period not to exceed six (6) days; provided, however, that such inclusion of the week within the preceding benefit year shall not change the claim week pattern as established during the current period of unemployment in the first of such two benefit years.

10.5 The effective date of claim for succeeding transitional claims shall be the Sunday date immediately following the benefit year ending date on the preceding benefit year; provided, the benefit week was extended under 4 above to include the Saturday date immediately prior to such Sunday date. However, if the benefit year was not extended, or if extended did not include the Saturday date prior to such Sunday date, the effective date of the succeeding benefit year will be the first day immediately following the date of the last benefit week in the prior benefit year.

10.6 If the claimant is not eligible monetarily for a transitional claim, and if the last day of his benefit year falls within a benefit week with respect to which he has met the eligibility requirements of the Act, the ending date of his benefit year may be extended for a period not to exceed six (6) days for the purpose of paying the last benefit week.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-11.0 Proration of Deductible Lump Sum Payments for Determination of Weekly Benefit Amount Payable

When determining the benefit amount payable to an individual in any week, lump sum payments, deducted from an individual's weekly benefit amount by the Division of Unemployment Insurance pursuant to sections 3302(17), 3313(b), and 3313(f), Title 19, Delaware Code, shall be prorated and deducted from the individual's weekly benefit amount until said lump sum payment is exhausted. For the purpose of this section, "prorated" shall mean the proportional distribution, as determined by the Division of Unemployment Insurance, of a lump sum payment on a weekly basis.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-12.0 Disclosure of Information

Pursuant to Section 3125 (4), Title 19, Delaware Code, the disclosure of information contained in its records by the Delaware Division of Unemployment Insurance will be authorized, upon request, in the following cases for the following purposes:

12.1 To any properly identified claimant for benefits or payments under an unemployment compensation or readjustment allowance law of the Federal Government or of a State or to his duly authorized representative, information which directly concerns the claimant and is reasonably necessary for the proper presentation of his claim.

12.2 To any officer or employee of any agency of the Federal Government or of a State government, lawfully charged with the administration of an unemployment compensation or readjustment allowance law, but only for purposes reasonably necessary for the proper administration of such law.

12.3 To any officer or employee of any agency of the Federal Government or of a State government, lawfully charged with the administration of a law providing for old-age assistance or other public assistance, work relief, pension, retirement or other benefit payments, but only for purposes reasonably necessary for the proper administration of such law.

12.4 To applicants, employers and the public, general information concerning employment opportunities, employment levels and trends, and labor supply and demand, provided such release or publication does not include information which discloses the identity of individual applicants, employers or employing establishments, except where such party agrees to said release.

12.5 To individuals, employers, Federal government agencies and State government agencies, information for purposes other than as specified in this section if such disclosure will not impede the operation of, and is not inconsistent with the purpose of the Delaware Department of Labor and is not prohibited by applicable federal law regarding the confidentiality of unemployment insurance program data/information, and is authorized in writing in individual cases by the Delaware Secretary of Labor.

12.6 Disclosure of information shall be made pursuant to 19 Delaware Code §3125(4). Officials and employees of those governmental agencies to whom such disclosure is to be made shall include, but is not limited to the following:

12.6.1 Delaware Department of Labor

12.6.2 Delaware Department of Health and Social Services

12.6.3 Delaware Department of Finance

12.6.4 Delaware Department of Justice

12.6.5 Delaware Economic Development Office

12.6.6 Secretary of Labor of the United States

12.6.7 Internal Revenue Service

12.6.8 United States Postal Service

12.6.9 United States Veterans' Administration

12.6.10 United States Department of Justice

12.7 With respect to disclosure of information, all individuals or organizations to which information is disclosed under this section which discloses the identity of an individual or an employing unit shall be bound by the requirements of 19 Delaware Code §3125 regarding confidentiality of the information disclosed and shall be subject to the sanctions set out in that section for improper disclosure. The use of such information shall be limited to the purposes for which it was disclosed to the recipient as permitted by this regulation and shall be limited to the purposes reasonably necessary for the law administrated by such agency.

12.8 With respect to disclosure of information, unless the disclosure relates to the administration of unemployment law or a function of the Division of Unemployment Insurance imposed by state or federal law, no disclosure of information shall be made under these regulations unless arrangements have been made to reimburse the Division of Unemployment Insurance for the actual costs of providing the information to the recipient.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-13.0 Joint Accounts of Employers

Section 3352, Title 19, Delaware Code regarding Joint Accounts of Employers, provides that the Department may prescribe regulations for the establishment, maintenance and dissolution of joint accounts by two or more employers subject to assessments under this Chapter.

Accordingly, the Department adopts the following procedure:

13.1 Establishment

13.1.1 A joint account will be established upon application by two or more employers, if it is proven to the satisfaction of the Division of Unemployment Insurance that the employing units have substantially the same ownership involving common or majority control of equity, however evidenced. An application for a joint account must be made on Form UC-1 or by separate letter indicating the entities, officers, stockholders, and percentages of ownership interest. The establishment of a joint account will be effective for the calendar quarter in which such application is received. The Division of Unemployment Insurance may request all necessary information to make such determination; or

13.1.2 A joint account will be established when the Division of Unemployment Insurance determines that a reorganization of previously subject employing units having substantially the same ownership has occurred, and such reorganization may adversely affect the solvency of the Unemployment Compensation Fund. Such joint account will be effective within the calendar quarter that reorganization occurs.

13.2 Maintenance

13.2.1 Upon establishment of a joint account involving two (2) or more employers, regardless of whether such employing units were or were not previously subject to this Chapter, their individual accounts will be merged and maintained as if they constituted a single employer's account for experience rating purposes. However, each employing unit will continue to file reports and pay contributions under its individual account number.

13.3 Dissolution

13.3.1 Once established, a joint account cannot be dissolved so long as the individual employing units remain under substantially the same ownership.

13.3.2 Whenever any employing unit included in a joint account is purchased or otherwise acquired by outside interests, such employing unit will be given a new employer account number and assigned a contribution rate in accordance with Section 3348 of this Chapter.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-14.0 New Employer Rate of Assessment

Section 3348, Title 19, Delaware Code, regarding Average employer assessment rate; average industry assessment rate; average construction industry assessment rate; new employer rate; and standard rate of assessment, provides:

14.1 For any employer, excluding those employers in NAICS categories 236, 237, and 238 who become subject to this Chapter, the new employer rate shall be the average employer assessment rate.

14.2 For any employer in NAICS categories 236, 237, and 238 who become subject to this Chapter, the new employer rate shall be the average industry assessment rate in that employer's particular NAICS category (carried to 4 places) or the average construction industry assessment rate, whichever is the greater. With regard to Section 3348, an employing unit that alters its legal status in any way, such as changing from a sole proprietorship or a partnership to a corporation, or from one corporate entity to another as a result of re-incorporation, merger, or a transfer of employees between such entities or whenever an employing unit that otherwise changes its trade name or business identity while remaining under substantially the same ownership will not be considered to have become first subject to Chapter 31, Delaware Unemployment Compensation Code upon such reorganization and shall not be entitled to a new employer rate of assessment. Such an employer will be considered to be a reorganized employer, not a new employer.

14.3 A reorganized employer shall retain the contribution rate and be liable for all contributions, interest and penalties owed by the employing unit before the reorganization. However, if such reorganization shall involve the contribution rates of two (2) or more employing units, having substantially the same ownership, regardless of whether such employing units were or were not previously subject to this Chapter, the contribution rate for the reorganized employer shall be determined in accordance with Section 3352, Title 19, Delaware Code and Section 13.

14.4 The Secretary of Delaware’s Department of Labor may waive the provisions of this Section as they apply to a reorganized employer if said employer, prior to reorganization, is determined by the Division of Unemployment Insurance not to be delinquent with the regard to the payment of unemployment assessments and the application of such a regulation would be inconsistent with the economic development policies of the State of Delaware.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-15.0 Involuntary Leaving Work Due To Illness

With regard to Section 3314(1), Title 19, Delaware Code, an individual who elects a layoff in lieu of sickness and accident benefits provided under an employer benefit program or who elects a layoff in lieu of exercising the right to bump an employee with less seniority who is performing work that said individual can perform within his medical restrictions will not be considered to be an individual leaving work involuntarily because of illness, but shall be considered to have left his work voluntarily without good cause attributable to such work and shall be subject to the disqualification provision of this regulation.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-16.0 Eligibility for Benefits

16.1 Section 3315(1) of Title 19, Delaware Code provides that "the Department may, by regulation, waive or alter either or both of the requirements of this section.

16.2 Accordingly, "has registered for work" as it appears in §3315(1) of Title 19, Delaware Code shall mean any registration process, including any reemployment services or reemployment assessments as required by the Delaware Division of Employment and Training or the Delaware Division of Unemployment Insurance.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-17.0 Disqualification for Benefits

17.1 Section 3314(3) of Title 19, Delaware Code provides in part that an individual shall be disqualified for benefits "if he has refused to accept an offer of work which he is reasonably fitted....."

17.1.1 The determination of whether an individual is reasonably fitted for an offer of work that has been refused shall be based on the individual's previous work history, education, training, the O*NET (Occupational Information Network) Code assigned by the Delaware Division of Employment and Training, and the results of any skills assessment of the individual made by the Delaware Division of Employment and Training.

17.2 Section 3314(6) of Title 19, Delaware Code provides that an individual shall be disqualified for benefits "if the Department determines such individual has made a false statement or representation knowing it to be false or knowingly has failed to disclose a material fact to obtain benefits to which the individual was not lawfully entitled….."

17.2.1 When the Delaware Division of Unemployment Insurance cross-matches an individual's eligibility to receive benefits through a wage or other matching program and determines that wages were not reported by the individual, or otherwise discovers wages not reported by the individual, prior to taking any adverse action against the individual, the Delaware Division of Unemployment Insurance shall send the individual a notice providing the individual with an opportunity to submit additional information to contest the information discovered by the Delaware Division of Unemployment Insurance. The individual will have seven (7) days from the date the notice is mailed to respond to the notice. If the individual does not timely respond to the notice, the Delaware Division of Unemployment Insurance will make a decision based on the information it has obtained through its investigation. If the individual does timely respond to the notice, the Delaware Division of Unemployment Insurance will make a decision based on all information obtained through its investigation, including the individual's response.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-18.0 Interest on Past Due Assessments and Reimbursement Payments in Lieu of Assessments

Pursuant to Section 3357, Title 19, Delaware Code regarding "Interest on past due assessments and reimbursement payments in lieu of assessments": Assessments and reimbursement payments in lieu of assessments which remain unpaid on the date they are due and payable, as prescribed by the Delaware Division of Unemployment Insurance, shall bear interest at the rate of 1.5% per month or fraction thereof from and after such date until payment plus accrued interest is received by the Delaware Division of Unemployment Insurance.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-19.0 Employment Training Tax

19.1 Section 3401(a), Title 19, Delaware Code provides: "In addition to all other payments to the State due under this Title, each employer liable for assessments under Chapter 33 of this Title shall also be liable for a special assessment which shall be levied at the rate of .15% on all taxable wages, as defined in Section 3302(17) of this Title, payable by each such employer".

19.2 For the purpose of this regulation, the special assessment, also referred to as the "Training Tax", shall be billed on a semi-annual basis to each employer by the Delaware Division of Unemployment Insurance, based on reported taxable wages or on assessed taxable wages as estimated and determined by the Delaware Division of Unemployment Insurance under the provisions of Section 3359 of this Title. The semi-annual bill will cover the two calendar quarters, April 1- September 30 or October 1 - March 31 respectively, whichever are the two most recently completed calendar quarters prior to each billing.

19.3 Each employer shall be billed by the Delaware Division of Unemployment Insurance for the special assessment amount due not later than July 31 and January 31 of each year and such amount shall be considered delinquent 30 days after the date such bill was mailed. Interest shall accrue and be collectible by the Delaware Division of Unemployment Insurance on all unpaid assessments as prescribed in Section 3357 of this Title and Section 18.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-20.0 Registration For Work

20.1 Section 3315(1) Title 19, Delaware Code regarding "eligibility for benefits" provides that the Department may, by regulation, waive or alter the registration for work requirement.

20.2 Accordingly, the Delaware Division of Unemployment Insurance prescribes that the following unemployed individuals will not be required to register for work with the Delaware Division of Employment and Training to be eligible for the receipt of benefits:

20.2.1 Any individual on a temporary layoff who has a definite "return-to-work" date which has been verified by the Delaware Division of Unemployment Insurance with the individual's separating employer.

20.2.2 Any individual who is an active member of a trade union and who is actively seeking work through a union hiring hall as verified by the Delaware Division of Unemployment Insurance.

20.2.3 Any individual who is attached to a specific job as evidenced by a pattern of seasonal/periodic layoff and subsequent rehiring by the same employer over the most recent three (3) year period.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-21.0 Seasonal Employment

21.1 Section 3316(b), Title 19, Delaware Code provides that: "No occupation or industry shall be deemed to provide seasonal employment that is not part of the first processing of agricultural products and/or seafood products.”

21.2 or the purposes of this regulation, the first processing of agricultural products and/or seafood products shall refer to those occupations and industries in the following NAICS (North American Industry Classification System) categories (carried to six digits):

NAICS Code Major Occupation/Industry Group

111140 Agricultural Production - Crops

111160 Agricultural Production - Crops

111150 Agricultural Production - Crops

11110 Agricultural Production - Crops

111120 Agricultural Production - Crops

111130 Agricultural Production - Crops

111150 Agricultural Production - Crops

111191 Agricultural Production - Crops

111199 Agricultural Production - Crops

111920 Agricultural Production - Crops

111910 Agricultural Production - Crops

111930 Agricultural Production - Crops

111991 Agricultural Production - Crops

111211 Agricultural Production - Crops

111199 Agricultural Production - Crops

111219 Agricultural Production - Crops

111940 Agricultural Production - Crops

111992 Agricultural Production - Crops

111998 Agricultural Production - Crops

111219 Agricultural Production - Crops

111333 Agricultural Production - Crops

111334 Agricultural Production - Crops

111332 Agricultural Production - Crops

111335 Agricultural Production - Crops

111310 Agricultural Production - Crops

111320 Agricultural Production - Crops

111331 Agricultural Production - Crops

111339 Agricultural Production - Crops

111336 Agricultural Production - Crops

111411 Agricultural Production - Crops

111419 Agricultural Production - Crops

111998 Agricultural Production - Crops

115113 Agricultural Services

115114 Agricultural Services

115119 Agricultural Services

115111 Agricultural Services

11515 Agricultural Services

115116 Agricultural Services

311422 Food and Kindred Products

311999 Food and Kindred Products

311421 Food and Kindred Products

311211 Food and Kindred Products

311423 Food and Kindred Products

311999 Food and Kindred Products

311421 Food and Kindred Products

311941 Food and Kindred Products

311411 Food and Kindred Products

311711 Food and Kindred Products

311712 Food and Kindred Products

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

19 Del. Admin. Code § 1202-22.0 Partial Unemployment Insurance

22.1 Definitions. As used in this section, unless the context clearly requires otherwise:

“Partially unemployed individual” means a partially unemployed individual is an employee who, during any given week, is still employed by his or her employer but worked less than his or her regular full-time hours because of the lack of full-time work.

“Week of partial unemployment” means, with respect to a partially unemployed individual whose wages are paid on a weekly basis, a week of partial unemployment shall consist of his or her pay period week. With respect to a partially unemployed individual whose wages are not paid on a weekly basis (e.g., bi-weekly, monthly) a week of partial unemployment shall be any consecutive seven day period the Division may prescribe as to any employee or group of employees as it deems appropriate.

22.2 Original Benefit Year Claim. In order to file a claim for partial unemployment insurance, a partially unemployed individual must establish an original benefit year claim in person at one of the Division’s local offices or by using the Division’s on-line filing system.

22.3 Responsibility To File Low Earnings Report (Form UC-114). After the end of any week in which an employer has furnished any of its employees with less than regular full-time work (or the earnings equivalent thereto), on the customary payday for the pay period during which full-time work was unavailable the employer or the employee shall deliver a completed Low Earnings Report (Form UC-114) to the nearest Division local office signed by both the employer and the employee.

22.4 Division’s Responsibility on Receipt of Form UC-114. Upon receiving a Form UC-114, the Division shall promptly process the information contained in it so that a timely payment of unemployment insurance may be made to the partially unemployed individual who has established an original benefit year claim. For any given week, if the earnings stated on a Form UC-114 exceed the earnings allowance for the partially unemployed individual based on his or her weekly benefit amount, the Division will mail a notice to the affected employee stating the reason why no partial unemployment insurance is owed for the week in question.

22.5 Time For Filing Claims for Partial Unemployment. No claim for partial unemployment insurance benefits may be made more than 14 days after the week ending period reflected on the Form UC-114 being filed.

22.6 Employer Records in Connection with Partial Unemployment. In addition to the records required to be maintained by employers set forth in Section 4.0, each employer shall maintain for a period of four years payroll records containing the following information on each employee that was determined to be eligible to receive partial unemployment insurance:

22.6.1 the amount of wages earned by week;

22.6.2 the specific dates of weeks of less than full-time work by the employee; and

22.6.3 the number of hours of work lost by each employee, if any, due to the employee’s unavailability for work.

History

24 DE Reg. 173 (08/01/20)
19 DE Reg. 1022 (05/01/16)
17 DE Reg. 325 (09/01/13)
17 DE Reg. 325 (09/01/13)
19 DE Reg. 64 (07/01/15)
19 DE Reg. 1022 (05/01/16)
24 DE Reg. 173 (08/01/20)

1300 Division of Industrial Affairs

1310 Office of Anti-Discrimination

1311 Office of Anti-Discrimination Rules and Regulations

19 Del. Admin. Code § 1311 Office of Anti-Discrimination Rules and Regulations

1000 DEPARTMENT OF LABOR

1300 Division of Industrial Affairs

1311 Office of Anti-Discrimination Rules and Regulations

1.0 General Provisions

1.1 Purpose and scope.

1.1.1 The regulations set forth in this part contain the procedures established by the Department of Labor for carrying out its responsibilities in the administration and enforcement of 19 Del.C. Ch 7, Subchapters II-III.

1.2 Address; office hours.

1.2.1 Questions may be addressed to “Anti-Discrimination Office Administrator” at 4425 N. Market Street, Wilmington, Delaware 19802. The office is open daily from 8:00 a.m. to 4:30 p.m. except Saturdays, Sundays, and Legal Holidays.

1.3 Definitions.

1.3.1 The terms “Charging Party”, “Conciliation”, “Delaware Right to Sue Notice”, “Mediation”, “No Cause Determination”, “Reasonable Cause Determination”, and “Respondent”, when used in this regulation, shall have the meanings set forth in 19 Delaware Code, Section 710.

1.3.2 The following words and terms, when used in this regulation, shall have the following meanings:

“Administrator” means the Office of Anti-Discrimination Administrator or his designee.

“Complainant” means any individual claiming to have been harmed by an unlawful employment practice under the Discrimination in Employment Act (19 Del.C. §711) or the Handicapped Persons Employment Protections Act (19 Del.C. §724).

“Day” means calendar day unless otherwise specified.

“Department” means the Department of Labor.

“Fact-finding conference” means a conference convened by the administrator as an investigative forum intended to define the issues, to determine which elements are undisputed, to resolve those issues that can be resolved and to ascertain whether there is a basis for negotiated settlement of the verified charge.

“Mediation Director” means the director of the Discrimination Mediation Unit or his designee.

“Party” means any complainant, charging party, respondent, or the Department of Labor.

“Verified charge” or “charge” means a charge of discrimination that sets forth a concise statement of facts, in writing, verified under oath and signed by the Charging Party.

1.4 Attorneys; form of appearance on behalf of parties.

1.4.1 An attorney may appear on behalf of a party by providing written notice of appearance. To constitute an appearance, a form, letter, or document shall contain the names of the parties, the department’s docket number if known, the name of the party that the attorney represents, and the attorney’s address, telephone number, facsimile number, and e-mail address.

1.4.2 If a party appears through an attorney, all papers shall be served on the attorney with the same force and effect as though served on the client.

1.4.3 An attorney may withdraw his appearance by providing written notice of withdrawal to the department, certifying that a copy of the notice of withdrawal was mailed to all parties.

1.5 Parties’ obligation to keep department informed of change of address or status.

1.5.1 The parties shall promptly notify the department of any change in address, telephone number, contact information, or other material change in business status while the charge is pending.

1.6 Liberal construction of regulations.

1.6.1 These regulations shall be liberally construed by the administrator to permit the department to discharge its statutory duties under 19 Del.C. Ch. 7, Subchapters II and III.

1.7 Practice where regulations do not govern.

1.7.1 In any circumstance that arises not governed by these regulations, the administrator shall exercise his discretion in order to permit the department to discharge its statutory duties under 19 Del.C. Ch. 7, Subchapters II and III.

1.8 Validity of regulations if any portion declared invalid.

1.8.1 If any portion of these regulations is adjudged by a court of competent jurisdiction to be invalid, or if by legislative action any portion loses its force and effect, the ruling or action will not affect, impair or void the remainder of these regulations.

1.9 Amendment of regulations.

1.9.1 The administrator may rescind, amend or expand these regulations from time to time as necessary to comply with the Discrimination in Employment Act, 19 Del.C. Ch 7, Subchapter II or the Handicapped Persons Employment Protection Act, 19 Del.C. Ch 7, Subchapter III, and such new regulations shall be submitted to the Registrar’s office in accordance with the provisions of 29 Del.C. §10161(b).

2.0 Commencement of Actions

2.1 Manner of commencing actions.

2.1.1 An action shall be commenced by the filing of a verified charge with the department’s Office of Anti-Discrimination.

2.2 Who may file a verified charge.

2.2.1 A complainant may file a verified charge alleging a violation of the Discrimination in Employment Act or the Handicapped Persons Employment Protections Act.

2.3 Preparation and contents of verified charge.

2.3.1 A verified charge shall be filed on a printed form approved by the administrator.

2.3.2 The department shall assist the complainant in the completion of the verified charge where necessary.

2.3.3 The verified charge shall indicate that it is filed with the department, and shall set forth the following:

2.3.3.1 The complainant’s full name, address, and telephone number;

2.3.3.2 The respondent’s full name, address, and telephone number if known;

2.3.3.3 A brief statement of jurisdiction identifying the nature, date of, and location of the employment relationship;

2.3.3.4 The specific prohibited basis or bases that gave rise to the alleged violation;

2.3.3.5 The specific adverse employment action alleged to have occurred as a result of the alleged violation;

2.3.3.6 A brief statement of the facts deemed to constitute the alleged violation;

2.3.3.7 The specific law or laws allegedly violated;

2.3.3.8 A brief statement explaining why the complainant alleges a causal relationship between the prohibited basis and the adverse action; and

2.3.3.9 Notarized signature and verification by the complainant.

2.4 Filing a verified charge.

2.4.1 The filing of a verified charge is perfected upon completion of the following steps before an official of the Office of Anti-Discrimination:

2.4.1.1 Administration of an oath;

2.4.1.2 Execution of the verified charge; and

2.4.1.3 Notarization of the complainant’s verified signature.

2.5 Notification of filing.

2.5.1 Upon the filing of a verified charge, the department shall provide the charging party with a form approved by the administrator which notifies the charging party of the jurisdictional limitations of the department, including the limitation of the department to only administer claims under the Discrimination in Employment Act and the Handicapped Persons Employment Act, and the inability of the department to provide an attorney or conduct a hearing.

2.6 Service of a charge.

2.6.1 Within 14 days of the filing of a charge, the department shall cause a copy of the charge to be served on the respondent by certified mail, return receipt requested.

2.6.2 In its discretion, the department may also cause to be served with the copy of the charge or a request for information, an invitation to participate in mediation, or both.

2.6.3 At the time of service, the department shall provide the respondent with notice of the respondent’s right to file an answer.

2.6.4 The date of service on a respondent shall be the delivery date noted on the certified mail return receipt.

2.7 Amendment of a charge.

2.7.1 At any time before the department issues its final determination under 19 Del.C. §712(c)(3), the charging party, with the approval of the administrator, may file an amendment to the charge.

2.7.2 Amendments that cure technical defects or clarify allegations made in the original charge, or that allege additional acts that constitute unlawful practices related to or growing out of the allegations set forth in the original charge, will relate back to the date the charge was first filed.

2.7.3 Within seven days of the filing of an amendment, the department shall cause a copy of the amendment to be served on the respondent by certified mail, return receipt requested. The department shall provide written notice to the respondent of the respondent’s right to file an amended answer within 20 days of receipt of the amended charge.

3.0 Answers

3.1 Time for filing an answer.

3.1.1 A respondent may file an answer to the charge within 20 days of receipt of the charge. The respondent shall certify that a copy of the answer was mailed to the charging party or his attorney at the address provided.

3.1.2 A respondent may, in lieu of filing an answer, request mediation within 20 days of receipt of the charge. The respondent shall certify that a copy of the request for mediation was mailed to the charging party or his attorney at the address provided.

3.1.3 A request for an extension of time to file an answer or request for mediation shall be in writing and addressed to the administrator. The administrator within his discretion may authorize an extension.

3.2 Form and content of answer.

3.2.1 The answer to the charge shall fully and completely advise the charging party and the department of the respondent’s responses to each claim asserted, and shall specifically admit or deny the allegations set forth in each paragraph of the charge. A respondent may admit in part and deny in part.

3.2.2 Affirmative defenses shall be set forth separately.

3.2.3 The following information may be redacted from the copy of the answer served on the charging party:

3.2.3.1 Employment records of individuals other than the charging party;

3.2.3.2 Medical records of individuals other than the charging party;

3.2.3.3 Confidential trade secrets; and

3.2.3.4 The identity of witnesses who respondent intends to produce.

4.0 Preliminary Findings and Recommendations

4.1 Timing of preliminary findings and recommendations.

4.1.1 The administrator shall issue preliminary findings and recommendations within 60 days from the date of service of the charge on the respondent as required by 19 Del.C. §712(c)(2).

4.2 Form and content of preliminary findings and recommendations.

4.2.1 The preliminary findings and recommendations shall include the following:

4.2.1.1 A statement of whether or not the respondent filed an answer;

4.2.1.2 A referral to mediation or investigation, or a recommendation of dismissal.

4.3 Service of preliminary findings and recommendations.

4.3.1 Within one business day of issuing the preliminary findings and recommendations, the department shall cause a copy to be mailed to each party by U.S. Mail.

4.4 Criteria for preliminary recommendation of dismissal.

4.4.1 In determining whether to issue a preliminary recommendation of dismissal, the administrator shall review all information submitted by the parties that has been properly served as required by 19 Del.C. §712(c)(1), and shall consider the following factors:

4.4.1.1 The nature of the discrimination charged;

4.4.1.2 The probability of obtaining additional evidence that may affect the department’s final determination after full investigation; and

4.4.1.3 Whether the public interest is best served by the continuation of the investigatory process.

4.4.2 Before dismissing a case under 19 Del.C. §712(c)(2) the administrator shall notify the charging party of the reason for the recommendation, and shall offer the charging party at least 14 days to present additional information that would warrant further investigation.

4.4.2.1 The administrator in his sole discretion shall determine whether additional information provided warrants further investigation.

4.4.2.2 If the charging party does not present additional information that warrants further investigation within the stated time, the department may dismiss the case and issue a Delaware Right to Sue Notice.

5.0 Mediation

5.1 Confidentiality of Mediation Communications and Records.

5.1.1 All information exchanged during mediation proceedings are considered dispute resolution communications and shall be kept confidential. Records obtained in the course of mediation should remain confidential and not be used as evidence in any manner unless obtained independent of the mediation. Parties participating in the mediation process shall be required to sign and adhere to a confidentiality agreement in a form approved by the administrator.

5.1.2 Mediation settlement agreements are confidential and shall not be disclosed by the department except where the department seeks enforcement of the agreement under Section 5.3.

5.2 Mediation proceedings.

5.2.1 At any time following the time for filing an answer, the administrator at his discretion may refer a case to the mediation unit for mediation proceedings.

5.2.2 The mediation director may designate a mediator employed by the department or otherwise appointed by the mediation director to conduct the mediation proceedings.

5.2.3 If the mediation does not result in a settlement agreement, the mediation director shall refer the case to the investigation unit.

5.2.4 If the mediation does not result in a settlement agreement and the respondent has not yet filed an answer, the respondent must file an answer to the charge within 20 days of the respondent’s receipt of notification that the charge is being referred to the investigation unit.

5.2.5 If the mediation does not result in a settlement agreement and the respondent has filed an answer, the respondent must file a response to any pending request for information, and may file a supplementary answer, within 20 days of the respondent’s receipt of notification that the charge is being referred to the investigation unit.

5.2.6 The mediation director and staff, including appointed mediators, may not participate in the investigation of any case referred to the investigation unit.

5.3 Enforceability of mediation settlement agreements.

5.3.1 A settlement agreement reached during a mediation conference shall be set forth in writing and signed by the parties.

5.3.2 Allegations of breach of a settlement agreement reached during a mediation conference shall be brought to the attention of the mediation director. The mediation director shall review and investigate the allegations of breach of a mediation settlement agreement to determine whether a breach has occurred.

5.3.3 The mediation director shall issue written findings to the parties with regard to the allegation of breach of a mediation settlement agreement.

5.3.4 The administrator in his discretion will determine whether to forward the allegations of a breach of the mediation settlement agreement to the Attorney General for review.

6.0 Investigation

6.1 Timing of investigations.

6.1.1 The administrator shall promptly initiate an investigation into stated allegations of discrimination when:

6.1.1.1 The administrator refers a charge for investigation in accordance with 19 Del.C. §712(c)(2)(c); or

6.1.1.2 The mediation director refers a case to the investigation unit after unsuccessful mediation.

6.1.2 The department shall complete its investigation as promptly as possible.

6.2 Investigatory procedures.

6.2.1 All investigatory powers granted by 19 Del.C. §§107-108 shall be available to the department. In its discretion, the department may conduct investigations using, among other things, written requests for information, fact-finding conferences, subpoenas, on-site visits, interviews, and depositions as provided in these regulations.

6.2.2 In connection with an investigation, the department may require the submission of information relating to:

6.2.2.1 The race, marital status, genetic information, color, age, religion, sex, national origin or disability of employees;

6.2.2.2 The employment records of employees;

6.2.2.3 The procedures for advertising or notifying the public of the availability of jobs;

6.2.2.4 The procedures for hiring or selecting employees;

6.2.2.5 The testing, seniority, promotion and discharge procedures; and

6.2.2.6 Such other information as the department determines to be reasonably necessary to carry out the provisions of the Discrimination in Employment Act or Handicapped Persons Employment Protections Act.

6.3 Requests for Information.

6.3.1 The department may serve requests for information to assist the department in its investigation. Unless otherwise specified in a request for information, the response shall be due to the department within 14 days following service.

6.4 On-Site Visits.

6.4.1 The department may conduct on-site visits to assist the investigatory process for the purpose of gathering evidence, interviewing witnesses, observing a respondent’s facilities, and reviewing documents.

6.4.2 The department shall provide the respondent with written notice of the on-site visit at least 14 days prior to the visit. The notice shall specify the date and time of the visit.

6.4.3 The respondent shall grant access to its premises, documents, and employees during a scheduled on site visit.

6.5 Subpoenas.

6.5.1 The administrator may issue a subpoena as he deems necessary to assist the investigatory process. The administrator shall issue a subpoena in the name of the department, and the subpoena shall direct the person designated to personally appear and bring any books, records, documents and any other evidence that relates to any charge under investigation, or, in lieu of personal appearance, to produce any books, records, documents and any other evidence which relates to any charge under investigation.

6.5.2 A subpoena shall state the time and place where the person designated is directed to appear.

6.5.3 A subpoena shall be served either by personal service by any person 18 or more years of age by delivery of a copy thereof to the person named therein, by overnight delivery by commercial courier, or by registered or certified mail, return receipt requested.

6.6 Depositions.

6.6.1 The department may take depositions of witnesses under oath as part of any investigation when, in the discretion of the administrator, such depositions will aid the investigatory process.

6.7 Enforcement of subpoenas.

6.7.1 If any person fails to comply with a subpoena issued by the department, he shall be subject to the appropriate enforcement provisions of 19 Del.C. §108.

6.8 Fact-finding conferences.

6.8.1 Fact-finding conferences, as part of a discrimination investigation, are subject to the following:

6.8.1.1 As part of its investigation and at the discretion of the administrator, the department may convene a fact-finding conference for the purpose of obtaining evidence, identifying the issues in dispute, ascertaining the positions of the parties and exploring the possibility of settlement. The fact-finding conference is not an adjudication of the merits of the charge.

6.8.1.2 The department shall provide the parties with written notice of the fact-finding conference at least 30 days prior to the conference. The notice shall specify the date, time and location of the conference and shall identify the individuals requested to attend on behalf of each party, and any documents that a party is requested to provide at the conference.

6.8.2 The conference shall be conducted as follows:

6.8.2.1 The department employee acting as fact-finder shall conduct and control the proceedings.

6.8.2.2 With prior notice to the department, the parties may request to bring witnesses to the conference in addition to those whose attendance may be specifically requested by the department. The fact-finder has discretion over which witnesses shall be heard and the order in which they are heard. The fact-finder may exclude any witness or other person from the conference, except that one representative of each party and counsel shall be permitted to remain throughout.

6.8.2.3 The department may request the parties to provide affidavits from witnesses who intend to appear at the fact-finding conference.

6.8.2.4 A party may be accompanied at a fact-finding conference by his or her attorney, and by a translator, if necessary.

6.8.2.5 An attorney for a party who has not previously entered his appearance shall do so at the outset of the conference.

6.8.2.6 Because the fact-finding conference is a means of investigation and not a hearing on the merits of a case, the parties shall not be entitled to cross-examine witnesses. All questioning shall be conducted by the fact-finder, unless in his discretion the fact-finder permits questions to be asked by other persons present at the conference.

6.8.2.7 During the conference, the fact-finder may allow a recess to permit the parties to discuss settlement.

6.8.3 Postponements of a fact-finding conference shall be subject to the following:

6.8.3.1 Except in extraordinary circumstances, requests for postponements must be made by notice to all parties at least 14 days prior to the conference.

6.8.3.2 Any opposition to a request for postponement must specifically state the basis for the opposition and must be received by the department at least seven days prior to the conference.

6.8.3.3 If a party or witness fails to appear at a scheduled fact-finding conference, the department may proceed with the conference without the party or witness.

6.8.4 If the respondent or the charging party refuses or fails to attend a scheduled fact-finding conference, the department may in its discretion schedule an alternate conference date. The department may subpoena any party or witness who failed to attend the initially scheduled fact-finding conference. The department may also subpoena any documents that either party was asked to bring, but failed to bring, to the fact-finding conference.

7.0 Administrative Dismissal

7.1 The administrator may in his discretion administratively dismiss a charge for reasons including but not limited to the following:

7.1.1 Lack of jurisdiction;

7.1.2 The charging party is unavailable or unwilling to participate in the investigation, or to attend a scheduled conference or conciliation;

7.1.3 Relief is precluded by the respondent’s bankruptcy or other special circumstances as determined by the administrator;

7.1.4 The charge was not timely filed under 19 Del.C. §712(c); or

7.1.5 The charge on its face fails to state a claim under the Delaware Discrimination in Employment Act or Handicapped Persons Employment Act.

7.2 The department will determine whether to administratively dismiss a charge under 19 Del.C. §712(c)(5).

7.3 Prior to administratively dismissing a charge under 19 Del.C. §712(c)(5) for lack of jurisdiction, untimeliness or failure to state a claim, the administrator shall notify the charging party of the reason for the proposed dismissal and shall offer the charging party the opportunity to respond.

7.3.1 The administrator shall make his final determination, considering all responses received within 14 days of the date of notice.

8.0 Withdrawal of Charge of Discrimination

8.1 A pending charge may be withdrawn by the charging party within 60 days of the commencement of the action. After 60 days the charge may only be withdrawn with the consent of the administrator.

8.2 A request for withdrawal shall be in writing and shall be signed by the charging party and his attorney if applicable.

9.0 Final Determinations

9.1 Issuance of findings.

9.1.1 Following the completion of an investigation of a charge, the administrator shall determine whether or not there is reasonable cause to believe that the respondent has committed or is committing an unlawful employment practice in violation of 19 Delaware Code, Chapter 7, Subchapter II or III.

9.1.2 If the administrator determines that there is reasonable cause to believe a violation of 19 Del.C. Chapter 7, Subchapter II or III has occurred, he shall issue to the parties a finding of reasonable cause.

9.1.3 If the administrator determines that the conditions for issuing a finding of reasonable cause have not been met, he shall issue a finding of no reasonable cause.

9.1.4 If the administrator determines that reasonable cause exists as to some but not all of the allegations of the charge, he shall issue a determination setting forth those issues to which he finds reasonable cause exists and those issues to which he finds no reasonable cause exists.

9.1.5 Subject to the provisions of section 9.2, a Notice of Final Determination is final when issued.

9.2 Request for reconsideration of finding of reasonable cause.

9.2.1 A party requesting reconsideration of a finding of reasonable cause shall file a written request to the administrator within ten days of receipt of the finding, with a copy to the other parties.

9.2.2 The administrator shall determine whether reconsideration is warranted within ten days of receipt of the request for reconsideration.

9.2.2.1 The administrator in his sole discretion shall determine what if any further supporting evidence or information is needed to complete his review, and shall offer the party at least fourteen days to present additional information.

9.2.3 The administrator shall issue his written decision to the parties. The administrator’s decision is final when issued.

10.0 Conciliation

10.1 Timing of conciliation proceedings.

10.1.1 Within 30 days from the date of a final determination of “reasonable cause”, every attempt will be made to commence conciliation proceedings for the purpose of negotiating a settlement of the charge and compliance with the pertinent statutes.

10.2 Confidentiality of conciliation records.

10.2.1 All information exchanged during conciliation proceedings are considered dispute resolution communications and shall be kept confidential. Records obtained in the course of conciliation should remain confidential and not be used as evidence in any manner unless obtained independent of the conciliation. Parties participating in the conciliation process shall be required to sign and adhere to a confidentiality agreement in a form approved by the administrator.

10.2.2 Conciliation settlement agreements are confidential and shall not be disclosed by the department except where the department seeks enforcement of the agreement under Section 11.

10.3 Conciliation conference proceedings.

10.3.1 After a finding of reasonable cause, the administrator shall schedule a conciliation proceeding.

10.3.2 The parties administrator shall give the parties at least 14 days notice of the date, time and place of the conciliation proceeding.

10.3.3 The department employee acting as conciliator shall conduct and control the proceeding.

10.3.4 A party may be accompanied at a conciliation proceeding by his or her attorney or another representative, and by a translator, if necessary.

10.3.5 The conciliator may exclude any person from the conciliation proceeding, except that counsel and translators shall be permitted to remain throughout.

10.3.6 An attorney for a party who has not previously entered his appearance shall do so at the outset of the proceeding.

10.3.7 A party’s failure to attend the conciliation proceeding may be deemed to be a failure of conciliation effort.

10.3.8 Any conciliation agreement shall be subject to the approval of the department.

11.0 Enforceability of settlement agreements.

11.1 A settlement agreement reached during investigation or conciliation shall be set forth in writing and signed by the parties.

11.2 Allegations of breach of a settlement agreement shall be brought to the attention of the administrator. The administrator shall review and investigate the allegations of breach of a settlement agreement to determine whether a breach has occurred.

11.3 The administrator shall issue written findings to the parties with regard to the allegation of breach of a settlement agreement.

11.4 The administrator in his discretion will determine whether to forward allegations of breach of the settlement agreement to the Attorney General for review.

12.0 Delaware Right-to-Sue Notice

12.1 Issuance of a Delaware Right-to-Sue Notice.

12.1.1 The administrator shall issue a Delaware Right-to-Sue Notice under 19 Del.C. §712(c)(3), (5) upon the following:

12.1.1.1 Issuance of a final determination of no reasonable cause;

12.1.1.2 Failure of conciliation efforts; or

12.1.1.3 Administrative dismissal of the charge.

12.1.2 The administrator may issue a Delaware Right-to-Sue Notice while the charge is pending upon the following:

12.1.2.1 At the request of the Charging Party; or

12.1.2.2 By initiation of the administrator, in his discretion.

12.1.3 Termination of proceedings.

12.1.3.1 Issuance of a Delaware Right-to-Sue Notice shall terminate further proceedings of the charge by the department.

13.0 Service of Recommendations, Determinations, and Notices

13.1 All preliminary recommendations, final determinations and Delaware Right-to-Sue Notices shall be promptly served on all parties by U.S. Mail or by other means as agreed upon in writing by the parties.

14.0 Access to Department’s Investigatory Files

14.1 Confidentiality of department’s investigatory files.

14.1.1 The department’s investigatory records are confidential and exempt from public access under 29 Del.C. Ch. 100.

14.2 Parties’ right to obtain factual documents.

14.2.1 After issuance of a Delaware Right-to-Sue Notice under 19 Del.C. §712(c)(3), (5), while litigation is pending, a party to a charge may make a written request to the administrator for copies of the following information in the department’s file of that charge:

14.2.1.1 Witness statements; and

14.2.1.2 All factual written data, factual written reports or documentary information obtained or provided to the department in the course of its investigation that is not otherwise subject to confidentiality or privilege.

14.3 A request made under this section must certify that a copy was mailed to the other party or his attorney where appropriate at the address provided.

14.4 Discovery of department’s investigatory files by non-parties.

14.4.1 Non-parties to a charge shall not have access to the material in the department’s investigatory file of that charge.

14.5 Copying Costs.

14.5.1 The department’s fee for copying documents requested under this section shall be the same fee as is applicable to requests granted pursuant to 29 Del.C. Ch. 100. The administrator may waive or modify this fee in the case of an indigent party or in other extraordinary situations for good cause.

15.0 Retention of Investigatory Files

15.1 The department shall retain investigatory files for two years after the end of the administrative process.

15.2 Where a charge is filed concurrently with the United States Equal Employment Opportunity Commission, the department shall retain the investigative file for two years after the end of the federal administrative process.

12 DE Reg. 797 (12/01/08)

1320 Office of Labor Law Enforcement

1321 Clean Indoor Air Act Regulations

19 Del. Admin. Code § 1321 Clean Indoor Air Act Regulations

1000 DEPARTMENT OF LABOR

1300 Division of Industrial Affairs

1321 Clean Indoor Air Act Regulations

1.0 Proposed Regulations for Public Consideration:

Title 16 - Health and Safety, Chapter 29 -Clean Indoor Air Act, affecting places of employment within the jurisdiction of the Delaware Department of Labor as authorized by 16 Del.C. §2906.

2.0 Department of Labor Policy:

The legislative intent of the Clean Indoor Air Act is to protect nonsmokers from involuntary exposure to environmental tobacco smoke, not only in most indoor public places which fall within the jurisdiction of the Department of Health and Social Services, but also indoor places of employment which fall within the jurisdiction of the Department of Labor. Generally, the Act restricts smoking in any indoor workplace not exempt by statute, regulation or waiver.

3.0 Department of Labor Jurisdiction:

The Department of Labor is charged with the enforcement of this Act as it applies to employers, employees, places of employment and the workplace. The Act authorizes the Department of Labor to impose administrative penalties of $100 dollars for the first offense but not less than $250 for subsequent violations when appropriate. The Department shall cite such penalties against the employer, owner, operator, manager or other individual having control of the workplace, who knowingly permits smoking therein.

4.0 Acknowledged Workplace Exemptions:

In attempting to provide clarification on exempt status, the Department may propose regulations acknowledging additional workplace exemptions consistent with the legislative intent under the Act at 16 Del.C. §2904. The Department hereby proposes to recognize “Private Clubs” as defined herein, as beyond the jurisdiction of the Department of Labor as inapplicable or exempt from enforcement under the Act.

5.0 “Private Club Exemption”

means any club or organization that does not permit the general public to access its facilities or activities. Access is denied to anyone who does not agree or adhere to the rules of membership. In order to be considered a private club or organization for purposes of the Clean Indoor Air Act, the establishment must adhere to all of, but not limited to, the following criteria:

5.1 Have a permanent mechanism to carefully screen applicants for membership on subjective rather than objective factors;

5.2 Limits access and use of facilities, services, and activities of the organization to members and guests of the members;

5.3 Is controlled by its membership and operates solely for the benefit and pleasure of its members; and

5.4 Advertises exclusively and only to its members, excluding membership drives.

6.0 “Workplace” means a “work area” as defined by the statute.

7.0 Enforcement by the Department of Labor:

The Department’s administrative process is as follows: a) Complaint: Any employee alleging a workplace violation of the Clean Indoor Air Act, shall report such violations which has or is occurring, in writing to the Office of Labor Law Enforcement, Division of Industrial Affairs, 4425 North Market Street, Wilmington, DE 19802.

7.1 Enforcement Actions: The Department shall investigate all written complaints to determine if a violation has or is occurring. The Department may investigate alleged violation from any source. The Office of Labor Law Enforcement may conduct an inspection of any workplace where there is a suggestion of an employer’s non-compliance with the Clean Indoor Air Act. The Department shall take such steps as is necessary to bring about immediate correction and future compliance.

7.2 Administrative Penalties: If the Office of Labor Law Enforcement determines that the employer knowingly failed or refused to comply with the Act’s workplace restrictions, the Officer shall provide written notice of such determination. The notice shall include a date certain for compliance with future monitoring of the workplace with inspections. If prompt corrective action is not taken in accordance with the Department’s notice, the Department shall serve a citation for payment of the administrative penalty upon the person having control of the workplace where the violation occurred.

7.3 Right of Appeal of the Penalty: Upon receipt of a citation with assessment of administrative penalties, the person named and served, shall have thirty days from service to appeal the determination to the Secretary. The appeal must be in writing to the Secretary of Labor, 4425 North Market Street, Wilmington DE 19802.

8.0 Severability:

If any provision of these Regulations, or any portion thereof or the application or method of implementation is held invalid, the remainder of these Regulations shall not be affected by such holding and shall remain in full force and effect.

6 DE Reg. 1509 (5/1/03)

1322 Prevailing Wage Regulations

19 Del. Admin. Code § 1322 Prevailing Wage Regulations

Pursuant to 29 Del.C. §8503(7), the Department of Labor, State of Delaware, hereby promulgates the following rules and regulations to implement the provisions of 29 Del.C. §6960, "Wage provisions in public construction contracts." These regulations supersede Regulations PW101, entitled "Regulations Concerning Apprentices and Supportive Service Program Trainees Employed on State Projects" (adopted April 11, 1978 and repealed April 5, 1992) and "Delaware Prevailing Wage Regulations" (adopted April 5, 1992 as amended September 15, 1993).

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

19 Del. Admin. Code § 1322-1.0 Introduction

The prevailing wage law states that the specifications for every contract or aggregate of contracts relating to a public works project in excess of $500,000 for new construction (including painting and decorating) or $45,000 for alteration, repair, renovation, rehabilitation, demolition or reconstruction (including painting and decorating of building or works) to which this State or any subdivision thereof is a party and for which the State appropriated any part of the funds and which requires or involves the employment of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Delaware Department of Labor, Division of Industrial Affairs, to be prevailing in the county in which the work is to be performed.

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

19 Del. Admin. Code § 1322-2.0 Administration

The prevailing wage law assigns to the Department of Labor the responsibility for predetermining wage rates prevailing for the corresponding classes of laborers and mechanics employed on projects similar to the contract work in the counties where the work is to be performed. The Secretary of Labor has delegated the prescribed functions of the Department to the Administrator of the Office of Labor Law Enforcement of the Division of Industrial Affairs. The Office of Labor Law Enforcement has responsibility for enforcing and determining the prevailing rates, and ensuring that prevailing wages are paid in accordance with the provisions of the law.

Enforcement responsibility includes the conducting of investigations regarding compliance with the law; settling, adjusting and adjudicating, by informal means, cases involving the payment of prevailing wages; coordinating the enforcement activities of the various State agencies having contract compliance and enforcement responsibilities; requiring the withholding of payments to employers who have failed to pay prevailing wages; and recommending the commencement of legal proceedings against those failing to comply with the law.

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

19 Del. Admin. Code § 1322-3.0 Concepts and Definitions

3.1 This section presents definitions and explanations to provide a basic understanding of elements inherent in collecting wage data and issuing wage determinations, and enforcing prevailing rates.

3.1.1 Activity Covered. 29 Del.C. §6960 The prevailing wage law applies to every contract or aggregate of contracts relating to a public works project in excess of $500,000 for now construction (including painting or decorating) or $45,000 for alteration, repair, renovation, rehabilitation, demolition or reconstruction (including painting and decorating of building or works) to which this State or any subdivision thereof is a party and for which the State appropriated any part of the funds and which requires or involves the employment of mechanics and/or laborers.

3.1.2 "Building" or "Work". The terms "building" or "work" generally include construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work. The terms include without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, buoys, jetties, breakwaters, levees, canals, dredging, shoring, rehabilitation and reactivation of plants, scaffolding, drilling, blasting, excavating, clearing, and landscaping. The manufacture or furnishing of materials, articles, supplies or equipment is not a "building" or "work" within the meaning of the regulations unless conducted at the site of such a building or work.

3.1.3 Laborers and Mechanics. The terms "laborer" and "mechanic" includes at least those workers whose duties are manual or physical in nature (including those workers who use tools or who are performing the work of a trade), as distinguished from mental or managerial. The term "laborer" or "mechanic" includes apprentices and Supportive Service Program (SSP) trainees. The term does not apply to workers whose duties are primarily administrative, executive, or clerical, rather than manual. Persons employed in a bona fide executive, administrative, or professional capacity are not deemed to be laborers or mechanics. Working foremen who devote more than twenty (20) percent of their time during a workweek to mechanic or laborer duties are deemed to be laborers and mechanics for the time so spent.

The terms "laborers" and "mechanics" do not apply to watchmen, guards, dispatchers, or weighmasters. The following classifications of workers are recognized by the Department:

Asbestos Workers

Boilermakers

Bricklayers

Carpenters

Cement Finishers

Diver

Diver Tender

Electrical Line Worker

Electricians

Elevator Constructors

Glaziers

Insulators

Iron Workers

Laborers

Millwrights

Painters

Pile Driver

Plasterers

Plumbers/Pipefitters/Steamfitters

Power Equipment Operators

Roofer- Composition

Roofer - Shingle, Slate and Tile

Sheet Metal Workers

Soft Floor Layers

Sprinkler Fitters

Terrazzo/Marble/Tile Setters

Terrazzo/Marble/Tile Finishers

Truck Drivers

Definitions for each classification are contained in a separate document entitled, “Classifications of Workers Under Delaware’s Prevailing Wage Law.” Workers shall be classified by the Department of Labor. Classification determinations shall be recorded by the Department as they are made.

Laborers and mechanics are to be paid the appropriate wage rates for the classification of work actually performed, without regard to skill.

3.1.4 Apprentices and Supportive Service Program Trainees.

3.1.4.1 Definitions. As used in this section:

3.1.4.1.1 The term "apprentice" means persons who are indentured and employed in a bona fide apprenticeship program and individually registered with the Delaware Department of Labor.

3.1.4.1.2 The term "apprenticeship agreement" means a written agreement between an apprentice and either his/her employer or a joint apprenticeship committee which contains the terms and conditions of the employment and training of the apprentice.

3.1.4.1.3 The term "apprenticeship program" means a complete plan of terms and conditions for the employment and training of apprentices.

3.1.4.1.4 The term "Joint apprenticeship committee" means a local committee equally representative of employers and employees which has been established by a group of employers with a bona fide bargaining agent or agents to direct the training of apprentices with whom it has made agreements.

3.1.4.1.5 The term "registration" means the approval by the Department of Labor of an apprenticeship program or agreement as meeting the basic standards adopted by the Bureau of Apprenticeship and Training, United States Department of Labor. The term "registration" for SSP Trainees means the individual registration of a participant in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration.

3.1.4.1.6 The term "SSP Trainee" or "trainee" means a participant in the "Supportive Service Program" mandated by the Federal Highway Administration for federally aided state highway projects.

3.1.4.2 Employment of Apprentices and SSP Trainees on State Projects.

3.1.4.2.1 Apprentices and SSP Trainees will be permitted to work as such on State contracts in excess of $500,000 for new construction or $45,000 for alteration, repair, renovation, rehabilitation, demolition or reconstruction only when they are registered with the Department of Labor or an approved SSP Training Program.

3.1.4.2.2 The mechanic's rate on all such State contracts is that rate determined by the Department of Labor. The percentage of the mechanic's rate that the registered apprentice or SSP Trainee receives will be the percentage that the apprentice or trainee qualifies for under the terms of the individual's formal Apprenticeship/Trainee agreement.

3.1.4.2.3 Any person employed at an apprentice or trainee wage rate who is not registered as above, shall be paid the wage rate determined by the Department of Labor for the classification of work (s)he actually performed.

3.1.4.2.4 The ratio of apprentices to mechanics on the site of any work covered by 29 Del.C. §6960 in any craft classification may not be greater than the ratio permitted to the contractor for the entire workforce under the registered apprenticeship program. Any apprentice performing work on the job site in excess of the ratio permitted under the registered program must be paid not less than the wage rate that the applicable wage determination specifies for the work (s)he actually performs. Entitlement to mechanic's wages shall be based upon seniority in the apprenticeship program or (in the case of equal seniority) seniority on the job site.

3.1.4.3 Records.

3.1.4.3.1 Every employer who employs an apprentice or SSP trainee under this part must keep the records required by 19 Del.C. Chs. 9 and 11, including designation of apprentices or trainees on the payroll. In addition, every employer who employs apprentices or SSP trainees shall preserve the agreements under which the individuals were employed.

3.1.4.3.2 Every joint apprenticeship committee or SSP Program sponsor shall keep a record of the cumulative amount of work experience gained by the apprentice or trainee.

3.1.4.3.3 Every joint apprenticeship committee shall keep a list of the employers to whom the apprentice was assigned and the period of time (s)he worked for each. Every SSP Program sponsor shall keep a list of the projects to which the trainee was assigned and the period of time (s)he worked on each.

3.1.4.3.4 The records required by sections 3.1.4.3.1, 3.1.4.3.2, and 3.1.4.3.3 shall be maintained and preserved for at least three (3) years from the termination of the apprenticeship or training period. Such records shall be kept safe and accessible at the place or places of employment or at a central location where such records are customarily maintained. All records shall be available at any time for inspection and copying by the Department of Labor.

3.1.5 Working Foremen. 29 Del.C. §6960 does not apply to (and therefore survey data are not collected for) workers whose duties are primarily administrative, executive or clerical, rather than manual. However, working foremen who devote more than twenty (20) percent of their time during a workweek to mechanic or laborer duties are laborers and mechanics for the time so spent and data will be collected for the hours spent as laborers or mechanics.

3.1.6 Helpers. Helper classifications are not recognized by the Department of Labor. All laborers and mechanics are to be paid the appropriate wage rate for the classification of work actually performed, without regard to skill.

3.1.7 Construction Projects. In the wage determination process, the term "project" refers to construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work away from the site of the work and consists of all construction necessary to complete a facility regardless of the number of contracts involved so long as all contracts awarded are closely related in the purpose, time and place. For example, demolition or site clearing work preparatory to construction is considered a part of the project.

3.1.7.1 Character Similar. 29 Del.C. §6960 requires the predetermination of wage rates which are prevailing on projects of a "character similar to the construction work." As a general rule, the Department identifies projects by end use type and classifies then into three major categories:

3.1.7.1.1 Building Construction. Building construction generally is the construction of sheltered enclosures with walk-in access for the purpose of housing persons, machinery, equipment, or supplies. It includes all construction of such structures, the installation of utilities and the installation of equipment, both above and below grade level as well as incidental grading, utilities and paving. Additionally, such structures need not be "habitable" to be building construction. The installation of heavy machinery and/or equipment shall not change the project's character as a building. Examples: Alterations and additions to nonresidential buildings; Apartment buildings (5 stories and above); Arenas (enclosed); Auditoriums; Automobile parking garages; Banks and financial buildings; Barracks; Churches; Hospitals; Hotels; Industrial buildings; Institutional buildings; Libraries; Mausoleums; Motels; Museums; Nursing and convalescent facilities; Office buildings; Outpatient clinics; Passenger and freight terminal buildings; Police stations; Post offices; City halls; Civic centers; Commercial buildings; Court houses; Detention facilities; Dormitories; Farm buildings; Fire stations; Power plants; Prefabricated buildings; Remodeling buildings; Renovating buildings; Repairing buildings; Restaurants; Schools; Service stations; Shopping centers; Stores; Subway stations; Theaters; Warehouses; Water and sewage treatment plants (building only).

3.1.7.1.2 Heavy Construction. Heavy projects are those that are not properly classified as either "building" or "highway". Unlike these classifications, heavy construction is not a homogeneous classification. Examples of Heavy construction: Antenna towers; Bridges (major bridges designed for commercial navigation); Breakwaters; Caissons (other than building or highway); Canals; Channels; Channel cut-offs; Chemical complexes or facilities (other than buildings); Cofferdams; Coke ovens; Dams; Demolition (not incidental to construction); Dikes; Docks; Drainage projects; Dredging projects; Electrification projects (outdoor); Flood control projects; Industrial incinerators (other than building); Irrigation projects; Jetties; Kilns; Land drainage (not incidental to other construction); Land leveling (not incidental to other construction); Land reclamation; Levees; Locks, Waterways; oil refineries; Pipe lines; Ponds; Pumping stations (pre-fabricated drop-in units); Railroad construction; Reservoirs; Revetments; Sewage collection and disposal lines; Sewers (sanitary, storm, etc.); Shoreline maintenance; Ski tows; Storage tanks; swimming pools (outdoor); Subways (other than buildings); Tipples; Tunnels; Unsheltered piers and wharves; Viaducts (other than highway); Water mains; Waterway construction; Water supply lines (not incidental to building); Water and sewage treatment plants (other than buildings); Wells.

3.1.7.1.3 Highway Construction. Highway projects include the construction, alteration or repair of roads, streets, highways, runways, taxiways, alleys, trails, paths, parking areas, greenway projects and other similar projects not incidental to building or heavy construction. Examples: Alleys; Base courses; Bituminous treatments; Bridle paths; Concrete pavement; Curbs; Excavation and embankment (for road construction); Fencing (highway); Grade crossing elimination (overpasses or underpasses); Parking lots; Parkways; Resurfacing streets and highways; Roadbeds; Roadways; Shoulders; Stabilizing courses; Storm sewers incidental to road construction; Street Paving; Guard rails on highway; Highway signs; Highway bridges (overpasses; underpasses; grade separation); Medians; Surface courses; Taxiways; Trails.

3.1.7.1.4 Multiple Categories. In some cases a project includes construction items that in themselves encompass different categories of construction. Generally, a project is considered mixed and a "multiple schedule" used if the construction items are substantial in relation to project cost, i.e. more than twenty (20) percent. Only one schedule is used if construction items are "incidental" in function to the overall character of a project (e.g., paving of parking lots or an access road on a building project), and if there is not a substantial amount of construction in the second category.

3.1.7.2 Site of Work. A basic characteristic of the construction industry is the continual shift in the site of employment. 29 Del.C. §6960 provides that prevailing wages are to be paid to "...all mechanics and laborers employed directly upon the site of the work..." (emphasis added). The site of the work is limited to the physical place or places where the construction called for in the contract will remain when work on it has been completed.

3.1.8 Prevailing Wage Rates. Every contract and the specifications for every contract to which section 6960 applies are required to contain a provision stating the minimum wages to be paid various classes of laborers and mechanics. These rates are to be based upon the wages that the Department of Labor determines to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the county in which the work is to be performed, as reported in the Department's annual prevailing wage survey.

The prevailing wage shall be the wage paid to a majority of employees performing similar work as reported in the Department's annual prevailing wage survey or, in the absence of a majority, the weighted average wage paid to all employees reported.

3.1.9 Wages. The term "wages" means the basic hourly rate of pay plus fringe benefits as defined below.

3.1.10 Fringe Benefits.

3.1.10.1 Fringe benefits may be considered in determining whether an employer has met his/her prevailing wage obligations. To be considered a "bona fide" fringe benefit for purposes of the Act, a fringe benefit plan, fund, or program must constitute a legally enforceable obligation which meets the following criteria:

3.1.10.1.1 The provisions of a plan, fund, or program adopted by the contractor, or by contract as a result of collective bargaining, must be specified in writing, and must be communicated in writing to the affected employees. Contributions must be made pursuant to the terms of such plan, fund, or program. The plan may be either contractor-financed or a joint contractor-employee contributory plan. For example, employer contributions to Individual Retirement Accounts (IRAs) approved by IRS are permissible. However, any contributions made by employees must be voluntary. No contribution toward fringe benefits made by the employees themselves, or fringe benefits provided from monies deducted from the employee's wages may be included or used by an employer in satisfying any part of any fringe benefit obligation under the Act.

3.1.10.1.2 The primary purpose of the plan must be to provide systematically for the payment of benefits to employees on account of death, disability, advanced age, retirement, illness, medical expenses, hospitalization, and supplemental unemployment benefits.

3.1.10.1.3 The plan must contain a definite formula for determining the amount to be contributed by the contractor and a definite formula for determining the benefits for each of the employees participating in the plan.

3.1.10.1.4 Except as provided in subsection 3.1.10.2, the contractor's contributions must be paid irrevocably to a trustee or third person pursuant to an insurance agreement, trust or other funded arrangement. The trustee must assume the usual fiduciary responsibilities imposed upon trustees by applicable law. The trust or fund must be set up in such a way that the contractor, its owners, officers, or business, will not be able to recapture any of the contributions paid in nor in any way divert the funds to its own use or benefit. In order to be considered a valid fringe benefit, payments must be made either in cash, or contributed to an irrevocable escrow account at least once each month.

3.1.10.2 Unfunded self-insured fringe benefit plans (other than fringe benefits such as vacations and holidays which by their nature are normally unfunded) under which contractors allegedly make "out of pocket" payments to provide benefits as expenses may arise, rather than making irrevocable contributions to a trust or other funded arrangement as required under subsection 3.1.10.1.4, are not normally considered "bona fide" plans or equivalent benefits.

3.1.10.2.1 A contractor may request approval by the Administrator of an unfunded self-insured plan, in advance, in order to allow credit for payments under the plan to meet the fringe benefit requirements. In considering whether such a plan is bona fide, the Administrator will consider such factors as whether it could be reasonably anticipated to provide the prescribed benefits, whether it represents a legally enforceable commitment to provide such benefits, whether it is carried out under a financially responsible program, and whether the plan has been communicated to the employees in writing. The Administrator in his/her discretion may direct that assets be set aside and preserved in an escrow account or that other protections be afforded to meet the plan's future obligation. The Administrator will not approve, under any circumstances, a plan that benefits the contractor, its owners, officers, or business.

3.1.10.3 No benefit required by any other Federal law or by any State or local law, such as unemployment compensation, workers' compensation, or social security, is a fringe benefit.

3.1.10.4 The furnishing to an employee of board, lodging, or other facilities, are not "bona fide" wages or fringe benefits or equivalent benefits.

3.1.10.5 The furnishing of facilities which are primarily for the benefit or convenience of the contractor or the cost of which is properly a business expense of the contractor is not the furnishing of a "bona fide" fringe benefit or equivalent benefit or the payment of wages. This would be true of such items, for example, as relocation expenses, travel and transportation expenses incident to employment, incentive or suggestion awards, and recruitment bonuses, as well as tools and other materials and services incidental to the employer's performance of the contract and the carrying on of his business, and the cost of furnishing, laundering, and maintaining uniforms and/or related apparel or equipment where employees are required by the contractor, by the contractor's state contract, by law, or by the nature of the work to wear such items.

3.1.10.6 Contributions by contractors for such items as social functions or parties for employees, flowers, cards, or gifts on employee birthdays, anniversaries, etc. (sunshine funds), employee rest or recreation rooms, paid coffee breaks, magazine subscriptions, and professional association or club dues, may not be used to offset any wages or fringe benefits specified in the contract, as such items are not "bona fide" wages or fringe benefits or equivalent benefits.

3.1.10.7 The actual cost of the benefit to the employer is the basis for evaluating the value of the fringe benefit. Administration costs are not considered fringe benefits. The cost of the benefits must be apportioned between employment on both public and private projects. Thus, the total value of the benefit would be divided by the total amount of time worked. This will result in benefit per unit of time which would be equally applicable to public and private employment projects. Example: an employee works two weeks (80 hours) on a public project and two weeks (80 hours) on a private project. The employer pays $160 for the employee's health insurance for the month. The value of the benefit is $1.00 per hour. The employer is not permitted to apply the entire premium to the public project alone.

3.1.11 Peak Week. In determining prevailing wages, the Department utilizes a "peak week" survey concept to ensure that wage and fringe benefit data obtained from employers reflects for each classification, the payroll period during which the greatest number of workers in each classification are used on a project. The survey solicits the number of employees and wages paid at each given rate during the peak week. The contractor or reporting organization selects the week (between July 1 to December 31 of the previous year) during which the greatest number of each classification of laborers and mechanics was working. Peak weeks may be different for each classification of worker.

3.1.12 Wage Determinations. A "wage determination" is the listing of wages (including fringe benefits) for each classification of laborers and mechanics, which the Administrator has determined to be prevailing in a given county and type of construction. Wage determinations are issued annually.

3.1.13 Maintenance Work. To "maintain" means to preserve or keep in an existing state or condition to prevent a decline, lapse, or cessation from that state or condition. Wages paid to workers performing maintenance work shall not be used in determining prevailing wage rates.

3.1.14 Area. The term "area" in determining wage rates under 29 Del.C. §6960 shall mean the county of the State in which the work is to be performed. The term "area" in determining classifications of workers under 29 Del.C. §6960 shall mean the State of Delaware.

3.1.15 Secretary. "Secretary" means the Secretary of Labor for the State of Delaware.

3.1.16 Administrator. "Administrator" means the Administrator of the Office of Labor Law Enforcement for the Delaware Department of Labor, Division of Industrial Affairs.

3.1.17 Department. "Department" means the Delaware Department of Labor.

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

19 Del. Admin. Code § 1322-4.0 Determining Prevailing Wages

4.1 The Department of Labor shall conduct an annual survey for obtaining and compiling wage rate information and shall encourage the voluntary submission of wage data by contractors, contractors associations, labor organizations, public officials and other interested parties, reflecting wage rates paid to laborers and mechanics on various types of construction in the area.

4.1.1 Scope of Task. State directed and assisted construction activity is not restricted to any geographic sector of the state or to any particular type of construction. As a result, data collection methods employed by the Department for gathering prevailing wage information must be capable of determining patterns of wage compensation, including fringe benefits, for virtually all classifications of construction workers in at least the three major types of construction, within each of the three counties in Delaware. And, since the objective is determining "prevailing" wages, the collection of data must be completed within a relatively brief time frame.

4.1.2 Data to be Collected. Operation of the prevailing wage program necessitates an annual effort by the Department to obtain, compile and analyze wage rate information. This section explores the nature of the data and the means of collection.

4.1.2.1 What Information. Wage rates are issued for each classification of laborer and mechanic that will likely be employed in State funded or assisted construction in a certain type of construction. Information on wages paid, therefore, must be collected and tabulated on the basis of distinct job classifications and construction categories.

The survey reporting form used by the Department to collect wage and fringe information, "Report of Construction Wage Rates", provides for reporting data which includes the contractor's name and address, telephone number, project description and location, the highest number of workers employed in each classification during the peak week of the period being surveyed (which shall be within the period July 1 to December 31 of the year preceding the request for data) and the wage rate, including bona fide fringe benefits, paid to each worker.

4.1.2.2 Geographic Scope. A prime objective of the prevailing wage law is to protect local rates of pay and 29 Del.C. §6960 stipulates that the "area" for the determination of wage rates is to be the county in which the work is performed.

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

19 Del. Admin. Code § 1322-5.0 The Survey

5.1 The purpose of prevailing wage surveys is to collect information on wage and fringe benefit rates paid to mechanics and laborers working on construction projects of a similar character in a predetermined geographic area and calendar period. The Department attempts to give each contractor equal opportunity to be included in the final data base from which the prevailing rates are derived.

The Department shall conduct the survey in accordance with the following steps:

5.1.1 Plan the Survey.

The Department shall begin the survey preparation process no later than November of each year. Forms will be printed and supplies (envelopes, postage, etc.) will be ordered in preparation for the survey mailing. In addition, the Department will set up the external electronic production for submittal of survey information. The Department will request from the Division of Unemployment Insurance a computer printout (with two sets of address labels) of the names and addresses of all employers in the following North American Industry Classification System (NAICS) Codes, who reported workers during the calendar year in which the request is made:

The Department will begin to assemble the survey packets in mid-December of each year in preparation for the early January mailing.

5.1.2 Conduct the Survey.

On or before January 7th of each-year, survey forms will be mailed to every employer identified by the Division of Unemployment Insurance as having employed workers in the NAICS Codes listed above during the calendar year preceding the collection of data. Completed survey forms and electronic submission of survey data must be received by the Department or postmarked no later than February 8 of the survey year in order to be used in determining prevailing rates for that year. All other forms not complying with this deadline shall not be included. In the event that February 8th falls on a Saturday, Sunday, or legal holiday, the deadline for submitting survey forms shall be the next Department business day following the February 8th deadline.

By January 10th of each year, the Department shall notify the Delaware Contractor's Association, the Building Trades Council of Delaware, the Associated Builders and Contractors, the Delaware State AFL-CIO, the Secretary of the Department of Administrative Services, the Secretary of the Department of Transportation and the Roofing Contractors Association that the annual survey is being conducted. The notification shall contain a copy of the list of employers to whom survey forms were mailed and shall invite the addressees to submit the names and addresses of any employers whose names do not appear on the list. The notification shall also contain blank survey forms for the organizations' use.

The Department shall also notify the Local Unions whose collective bargaining wage rate has prevailed to submit their collective bargaining wage rate on forms provided by the Department and a copy of their current collective bargaining wage sheet to be entered as the prevailing wage rate for the survey which is being conducted.

As of January 1, 2016, the Delaware Department of Labor, Division of Industrial Affairs shall establish the prevailing wage for each respective craft or class of laborers and mechanics at the same rates established in collective bargaining agreements between labor organizations and their employers, or when collective bargaining agreement rates do not prevail, that govern work of a similar nature and similar crafts or classes of laborers and mechanics for the county where the public works contract will be performed if that particular labor organization's collective bargaining rate prevailed and they participated in the survey, for that particular trade or craft in that particular county for 4 consecutive years. When collective bargaining rates do not apply, the prevailing wage shall be the highest rate of the 4 years. If the agreed rate of pay is designated to be the craft's collective bargaining agreement, the annual rate adjustment will be determined by the collective bargaining agreement rate for each craft and county, each year.

When collective bargaining rates do not prevail, the annual rate adjustment shall be the Consumer Price Index-Construction. If the prevailing wage cannot be reasonably and fairly determined in any locality because no such agreements exists or the collective bargaining rate has not prevailed for 4 consecutive years the Department shall use the prevailing wage as established by the Department's annual prevailing wage survey.

For each respective craft or class of laborers or mechanics, the craft or class whose collectively bargained wages as of January 1, 2015, for that particular labor organization's collective bargaining rate prevailed for that particular trade or craft in that particular county is the prevailing wage rate and whose rate has prevailed for 4 of the last 5 years, or will prevail in the future for 4 consecutive years, shall have their collective bargaining agreement adopted as the prevailing wage rate negotiated by industry standards between workers and employers and the raise be determined by the collective bargaining agreement rate as of September 1 for that craft, county, and year.

5.1.3 Conduct Follow-Up.

On or before February 1st of each year, the Department shall mail a second notice to all employers who failed to respond to the first request for data. A second copy of the Department's master mailing list (indicating the employers who responded) shall be sent to the organizations listed in the preceding paragraph so that they can encourage the voluntary participation of their members.

5.1.4 Clarify and Analyze Data.

The data clarification process is to begin immediately upon receipt of survey responses. Each survey response is reviewed to determine completeness, appropriateness, and accuracy of data.

5.1.5 Code and Record Data.

Received by Mail survey responses are to be coded as follows:

"A" Survey response is usable (i.e., it is timely, complete, appropriate, and accurate)

"B" Employer reports no employees during survey period

"C" Survey response is incomplete

"D" Survey response is not applicable

"E" Survey request not deliverable at address used/Respondent not identified on survey form/ Information is not usable

5.1.6 Electronic Data

Electronic data will be reviewed daily and be accepted or denied based upon the same criteria listed in subsection 5.1.5.

Data from usable responses are to be recorded weekly electronically in a summary ledger which contains a breakdown of each classification of worker for each type of construction for each county. Survey responses coded "A" shall be filed by county and type of construction. Survey responses coded "B", "D". and "E" shall be kept in files separate from the usable responses.

Respondents who submit code “C” survey responses (incomplete) shall be contacted by telephone by the Department. The Department will give the respondent an opportunity to supply the missing information. Failure to submit the missing information prior to the publication of the Prevailing Wage determination (see Section 6.3) will result in a disqualification of the survey response (to the extent that it is not usable).

The master mailing list shall be coded weekly to show the identity of survey participants as well as the number and types of responses.

All survey responses and documents are to be retained by the Department for a period of three years.

5.1.7 Determine Adequacy of Data.

At the conclusion of the survey period, the Department will review the survey ledger to determine the adequacy of data in each classification in each type of construction in each county. Data will be considered adequate if the worker classification contains the wages of ten or more employees. Classification data not meeting the above criteria will be added to the previous year's survey data for the same classification. If the data still do not reflect the wages paid to at least ten workers, the data will be considered inadequate.

5.1.8 Compute Prevailing Wage Rates.

The Department will enter usable data (from the summary ledgers) in the computer. If a majority (i.e., more than 50% of the workers reported in a particular category are paid at the same rate, that rate shall be the prevailing wage rate for the classification. For example:

Laborers / New Castle county / Building Construction

Workers Rate of Pay (including benefits)

50 @ $17.25 = Majority

39 @ 16.75

10 @ 17.55

The prevailing wage rate $17.25

In the absence of a majority, the computer will determine the average (mean) of the wages-paid, weighted by the numbers of workers paid at each rate. For example:

Laborers/New Castle County/Building Construction

Workers Rate of Pay (including benefits)

25 @ $15.50 = $387.50

25 @ 17.25 = 431.25

39 @ 16.75 = 653.25

10 @ 17.55 = 175.50

99 $1,647.50

$1,647.50 ÷ 99 workers = $16.64 prevailing rate

5.1.9 Determine Wage Rates for Classes of Workers For Which Inadequate Data Are Received.

The Department is required by law to determine wages to be paid to all classes of workers employed on public projects. For that reason, the Department must have a means by which it can determine rates for which no data or inadequate data were received. If no data are received for a given classification, or if inadequate data are received (i.e., fewer than 10 workers reported in a given classification), the previous year's prevailing rates shall be reissued.

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

19 Del. Admin. Code § 1322-6.0 Issuing Wage Determinations

6.1 Publication of Preliminary Determination.

On or before February 15th of each year, the Department shall publish a "Preliminary Determination of Prevailing Wage Rates." In the event that February 15th falls on a Saturday, Sunday, or legal holiday, the Department shall issue the preliminary results on the next Department business day following February 15th.

6.2 Appeals.

From February 15th to February 25th, the Administrator of the Office of Labor Law Enforcement will consider protests and inquiries relating to the preliminary results. An interested person seeking review or reconsideration of a wage determination must present a request in writing accompanied by a statement with any supporting data or other pertinent information.

Requests for reconsideration must be substantive and specific in order to be considered by the Department. For example: A request stating that, "the highway rates don't look right", would not be considered substantive or specific. However, a request stating that, "residential rates appear to have been erroneously included for carpenters in New Castle County Building Construction" would be considered substantive and specific.

From February 25th to March 1st, the Department will attempt to gather information necessary to resolve objections and requests for reconsideration. However, no appeals, objections, or requests will be considered if received by the Department after the February 25th deadline. The Department will respond in writing to all interested persons who submit a written request for review.

An appeal from the Administrator's decision must be made in writing and received by the Secretary of Labor within five calendar days from the date of the postmark on the Administrator's decision. The Secretary or his/her designee shall render a final decision in writing.

6.3 Issuance of Determination

On or before March 15th of each year, the Department shall publish its annual "Prevailing Wage Determination." The Determination shall be valid for a period of one year or until subsequent rates or amendments are issued by the Department.

Public agencies (covered by the provisions of 29 Del.C. §6960) are required to use the rates which are in effect on the date of the publication of specifications for a given project. "Date of publication" means the date on which the specifications are made available to interested persons (as specified in the published bid notice). In the event that a contract is not executed within one hundred and twenty (120) days from the earliest date the specifications were published, the rates in effect at the time of the execution of the contract shall be the applicable rates for the project.

6.4 Post Determination Actions. Wage determinations will be modified only for the purpose of correcting errors. Determinations will not be modified to include survey data received after the close of the survey period.

6.4.1 Amendment to Correct Errors of Inadvertence. Amendments may be issued to correct inadvertent errors in the written text of a wage determination. The sole purpose is to correct wage schedules so that the wage determination will accurately and fully reflect the actual rates prevailing in the locality at the time the wage determination-was issued. Such amendments (which may be issued at any time) are used to correct errors due to transposition of rates and other clerical mistakes made in processing the schedule; they are not used to correct errors in judgment. Contracts which have already been awarded will not be affected by such amendments. Amendments issued more than ten (10) days prior to a bid opening must be used. Amendments issued less than ten (10) days prior to a bid opening may be disregarded.

6.4.2 Amendment to Correct Errors in Survey Data. Amendments which affect the validity of a wage determination may be issued to correct errors in rates resulting from erroneous information submitted by survey participants.

When the Department of Labor is notified in writing that a survey participant has submitted erroneous data (with regard to wages, fringe benefits, characterization of project, classification of workers, or county in which the work was performed), the Department shall determine the validity of the data. Corrections, if warranted, shall be made in the form of amended determinations at the end of each calendar quarter (beginning with the date the wage determination was issued). Contracts which have already been awarded will not be affected by such amendments. Amendments issued more than ten (10) days prior to a bid opening must be used. Amendments issued less than ten days prior to a bid opening may be disregarded.

6.4.3 Incorrect Wage Determinations: Before Contract Award.

If notification is received from the Department of Labor any time prior to the contract award that the bid documents contain the wrong wage schedule, such schedule or wage determination shall no longer be valid and may not be used - without regard to whether the bid opening has occurred.

If the bid documents contain no wage schedule, it is the contractor's (or subcontractor's) responsibility to contact the Department of Labor for the correct wage schedule. Such requests must be in writing. Responses to such requests will be in writing. Any contractor or subcontractor found using an incorrect wage schedule will be required to pay the correct wages based upon the proper classification of work as determined by the Department of Labor.

6.4.4 Lack of Valid Wage Determination: After Contract Award. If a contract is awarded without a wage determination or awarded with an incorrect wage determination, the contractor is responsible for the payment of the appropriate prevailing wage rates as determined by the Department of Labor.

6.4.5 Additional Classifications. Any class of laborers or mechanics which is not listed in the applicable wage determination but which is to be employed under the contract is to be classified by the Department of Labor in accordance with the procedures set forth in subsection 3.1.3 of these regulations.

6.4.6 Determination of Wages for Classifications for Which No Rates Are Published. Whenever a public project requires the services of a laborer or mechanic for which no rate has been published, the Department shall be notified in writing and shall determine the worker classification (from among the 26 classifications recognized by the Department of Labor) and the rate to be paid. The rate shall be determined as follows:

6.4.6.1 baseline rate in each county, the Department of Labor will determine the relationship between the "Building Construction" rates and the rates of the type of construction for which the rate is sought. To determine the relationship, (which is to be expressed as a percentage), the Department will use only those rates which were determined by data received in the relevant survey.

6.4.6.2 The Department will compare only those classifications for which corresponding rates were determined.

6.4.6.3 The total of the corresponding rates will be determined for each type of construction. The Heavy or Highway total will be divided by the Building rate to find what percentage of the Heavy or Highway rate to the Building rate.

6.4.6.4 The Department of Labor will multiply the Building rate for the requested classification of worker by the percentage determined in "c" to establish the applicable prevailing wage rate.

Hypothetical example:

A plumber's rate is needed for a New Castle County project. The Department of Labor has not published a rate for this classification. The Department of Labor will determine the relationship between New Castle County Highway rates and Building rates, comparing only corresponding rates which were actually determined by the relevant survey (rates carried forward from previous years due to lack of sufficient data are not to be used).

N.C.C. Building N.C.C. Highway

Bricklayers $19.65 $12.29

Carpenters $23.37 $21.69

Cement Finishers $23.55 $15.52

Laborers $13.62 $10.60

Power Equipment Operator $22.94 $15.77

Truck Drivers $15.15 $13.75

$118.28 $89.62

$89.62 ÷ 118.28 = 75.77%

The plumber's rate for New Castle County Building is $26.54. $26.54 x 75.77% = $20.11

The plumber's rate for New Castle County Highway = $20.11

The same method can be used between corresponding types of construction when the Building construction rates do not contain a rate for the requested classification of worker; i.e., Heavy construction rates in Sussex County can be compared with Heavy construction rates in New Castle.

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

19 Del. Admin. Code § 1322-7.0 Enforcement

7.1 The authority to enforce the prevailing wage rates derives from 29 Del.C. §6960(b) which states: "The Department of Labor shall investigate all claims that the prevailing wage rates as provided for under this section are not being or have not been paid.”

7.1.1 Duties of Contractors. Every contractor and subcontractor on a public project shall:

7.1.1.1 Post in a prominent and accessible place at the site of the work, a legible copy of the applicable prevailing wage determination issued by the Department. The notice must remain posted during the life of the contract and must be supplemented in its entirety whenever amended wage rate determinations are issued by the Department.

7.1.1.2 Pay all mechanics and laborers employed directly upon the site of the work, unconditionally and not less often than once a week and without subsequent deduction or rebate on any account, the full amounts accrued at the time of payment, computed at wage rates not less than those stated in the prevailing wage rate determination.

7.1.1.2.1 Laborers or mechanics performing work in more than one occupation shall be compensated at least the rate specified for each occupation for the time actually worked therein.

7.1.1.2.2 An employer shall not pay or permit any worker to accept wages less than the prevailing rate of wages as determined by the Department;

7.1.1.2.3 Every employer performing work on a public project shall furnish weekly payroll reports to the Department of Labor on forms provided (upon request) by the Department. Payroll reports shall be mailed or delivered by the employer to the Department within-one week from the last work day covered by the report. Failure to complete each and every section of the report (including the requirement that the form be notarized) will constitute a failure to submit sworn payroll information as required by the Department.

7.1.1.2.4 An employer shall not, at any time during the project, pay less than the prevailing rate of wages for each hour worked, regardless of the rate of pay being paid at any other time.

7.1.1.2.5 An employer shall not pay less than the prevailing rate of wages by docking pay, docking time, or deducting pay for any purpose unless provided for by law including the Wage Payment and Collection Act of the State of Delaware (19 Del.C. §1107).

7.1.1.2.6 A person shall not, either for himself/herself or any other person, request, demand, or receive, either before or after an employee is engaged, that such employee pay back, return, donate, contribute, or give any part or all of said employee's wages, salary, or thing of value, to any person, upon the statement, representation, or understanding that failure to comply with such request or demand will prevent such employee from procuring or retaining employment. This paragraph does not apply to any agent or representative of a duly constituted labor organization acting in the collection of dues or assessments of such organization as permitted by law.

7.1.1.2.7 A person shall not, directly or indirectly, aid, request, or authorize any person to sign a release for any claim of wages with the intent to avoid payment of the prevailing wage rates.

7.1.1.3 Keep the following records for a period of three years:

7.1.1.3.1 The name and address of each employee;

7.1.1.3.2 The social security number of each employee;

7.1.1.3.3 A daily log for each individual employed upon the site of construction. The log must list (in general terms) the tasks performed by each employee and the amount of time spent performing each task. (Examples, “hung drywall’, “wired lighting fixtures”, etc.);

7.1.1.3.4 Each employee's basic hourly rate of pay (If an employee performs public project work in more than one trade, the employer's record must reflect the hourly rate paid for each type of work performed; If an employee performs both prevailing wage work and non-prevailing wage work, the records must reflect the rates paid for each.)

7.1.1.3.5 The number of hours worked in each occupation on the project in the applicable pay schedule, the number of hours worked in each day, and the total number of hours worked each week;

7.1.1.3.6 The amount of wages paid each employee;

7.1.1.3.7 The amount of wages paid each employee as fringe benefit payments;

7.1.1.3.8 The amount of any deductions withheld from each employee's wages; and

7.1.1.3.9 An accurate description of the nature of the deductions withheld from each employee's wages. (Fringe benefit deductions must be supported by a written fringe benefit policy as required by the Wage Payment and Collection Act.)

7.1.2 Investigation. A complaint may be filed with the Department by any employee upon a public project or any interested party. The complaint shall be in writing. Upon receipt of a complaint or upon its own motion the Department shall initiate an investigation.

7.1.2.1 The Department shall notify the employer by certified and First Class mail that a complaint has been filed and/or that an investigation has been initiated. The Department may request (or subpoena, if necessary) records, documents, or testimony necessary to make a determination as to the validity of the complaint or the employer's compliance with the law.

7.1.2.2 If the Department of Labor is unable to obtain voluntary compliance, the Department shall notify the employer by certified and First Class mail that it has made a final determination that the employer is in violation and that the employer has the right to appeal the final determination to the Secretary (the "Final Notice"). All appeals of a Final Notice to the Secretary shall be in writing and must be received by the Secretary within fifteen (15) days from the receipt of the Final Notice. For purposes of determining "receipt," the failure to accept certified mail, combined with the lack of return of First Class mail, shall be deemed to be sufficient notice. Receipt shall be construed upon the date at which the certified mail was rejected. Failure to make a return of service shall not affect the validity of service. The Secretary shall acknowledge receipt of appeals within twenty (20) days and propose a schedule to determine the appeal. The Secretary may designate a neutral third party to preside over an appeal. Final Determinations shall be reviewable for an abuse of discretion or clear error of law.

7.1.2.3 Consistent with the prevailing wage law, the Department may direct the contracting agency and/or the prime contractor to withhold payments to the employer (in an amount equal to the prevailing wage deficiencies, as determined by the Department) which are to be remitted to the Department for distribution upon resolution of the matter. The determination of when a matter shall be resolved shall be at the sole discretion of the Department. In addition, the Secretary may terminate all rights of the employer to proceed with the work under the contract and the employer shall be responsible for all damages resulting therefrom.

7.1.2.4 Employers may request, in writing, expedited treatment of an investigation and/or an appeal to the Office of the Secretary. In such cases, the employers shall state with particularity the reason for the request and provide all information requested by the Department. The Department shall respond to requests for expedition within seven (7) days. If expedited relief is granted, the Department shall make every effort to expedite the investigation and/or appeal to the Secretary or his/her designee. The Department shall have sole discretion to grant or deny requests for expedition and such decisions are not reviewable.

7.1.3 Hearings. A hearing shall be held in cases involving the termination of rights to proceed with the work under the public construction contract. A hearing shall also be held in cases involving classification disputes. However, any such party's appeal request must be received by the Department of Labor within fifteen (15) days of said party's receipt of the final decision of the Office of Labor Law Enforcement. For purposes of determining "receipt," the failure to accept certified mail, combined with the lack of return of First Class mail, shall be deemed to be sufficient notice. Receipt shall be construed upon the date at which the certified mail was rejected. Failure to make a return of service shall not affect the validity of service. A hearing otherwise required by this subsection may be voluntarily waived at the request of the employer.

7.1.4 Hearing Practices and Procedures.

7.1.4.1 Scope of Rules. These rules shall govern the conduct of prevailing wage hearings held by the Department of Labor.

7.1.4.2 Initiation of Hearing. The Secretary of Labor shall initiate a hearing by notifying the contractor or subcontractor by registered mail that said contractor or subcontractor is alleged to have violated the prevailing wage law. The notice shall give 20 days prior notice from receipt to all parties as follows:

7.1.4.2.1 The notice shall describe the subject matter of the proceedings;

7.1.4.2.2 The notice shall give the date, time and place the hearing will be held;

7.1.4.2.3 The notice shall cite the law or regulation giving the Department authority to act;

7.1.4.2.4 The notice shall inform the party of his/her right to present evidence, to be represented by counsel, and to appear personally or by other representative; and

7.1.4.2.5 The notice shall inform the parties that the Department will reach its decision based upon the evidence received.

For purposes of determining "receipt," the failure to accept certified mail, or the lack of return of First Class mail, shall be deemed to be sufficient notice. Receipt shall be construed upon the date at which the certified mail was rejected. Failure to make a return of service shall not affect the validity of service.

7.1.4.3 Conduct of Hearing.

7.1.4.3.1 The hearing shall be conducted-by the Secretary of Labor or by a hearing officer designated for that purpose by the Secretary.

7.1.4.3.2 In connection with such hearing, the Secretary or hearing officer shall:

7.1.4.3.2.1 Issue subpoenas for witnesses and other sources of evidence, either on the Department's initiative or at the request of any party;

7.1.4.3.2.2 Administer oaths to witnesses;

7.1.4.3.2.3 Exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence;

7.1.4.3.2.4 Limit unduly repetitive proof, rebuttal and cross-examination;

7.1.4.3.2.5 Hold prehearing conferences for the settlement or simplification of issues by consent, for the disposal of procedural requests or disputes and to regulate and to expedite the course of the hearing.

7.1.4.3.3 The rules of evidence applied in civil cases by the courts of the State of Delaware shall not be strictly followed. The Secretary or hearing officer may allow evidence not admissible under these rules of evidence where, in his or her judgment, application of the exclusionary rule would result in unnecessary hardship and the evidence offered is of a kind commonly relied upon by reasonably prudent persons in the conduct of their affairs. Hearsay may be admissible in administrative hearings, but may not constitute the sole basis for the Secretary or hearing officer's determination upon the factual issue addressed by the hearsay evidence.

7.1.4.3.3.1 All hearings shall be conducted in a fair, impartial, expeditious and orderly manner.

7.1.4.3.4 The burden of proof shall be-upon the Department. (If the records maintained by the employer do not provide sufficient information to determine the exact amount of wages owed, the Department may make a determination based on available evidence.)

7.1.4.3.5 A record from which a verbatim transcript can be prepared shall be made of all hearings in contested cases. Transcripts shall be made at the request and expense of the requesting party.

7.1.4.3.6 A party's failure to appear at a hearing that has been duly noticed shall not mandate the continuance of the hearing. At the discretion of the Secretary or hearing officer, the hearing shall proceed in the party's absence, which shall be noted on the record.

7.1.4.3.7 If a party, or counsel to a party, engages in conduct in violation of an order of the independent reviewer, or other disruptive conduct during an oral hearing, the independent reviewer may impose non-monetary sanctions therefor, including the issuance of an order: (i) excluding the party and/or his or her counsel from any further participation in the hearing; (ii) striking briefs from the record; (iii) providing that certain facts shall be taken to be established for purposes of the appeal; or (iv) providing for such other relief as is just and equitable under the circumstances.

7.1.4.4 Proposed Orders.

7.1.4.4.1 Whenever a hearing officer presides over a hearing (s)he shall prepare a proposed order for the consideration of the Secretary which shall include:

7.1.4.4.1.1 A brief summary of the evidence and recommended findings of fact based upon the evidence;

7.1.4.4.1.2 Recommended conclusions of law; and

7.1.4.4.1.3 Recommended decision.

7.1.4.4.2 When the proposed order is submitted to the Secretary, a copy shall be delivered to each of the other parties who shall have 10 days to submit in writing to the Secretary exceptions, comments and arguments respecting the proposed order.

7.1.4.5 Record. With respect to each case, all notices, correspondence between the agencies and the parties, all exhibits, documents in testimony admitted into evidence and all recommended orders, summary of evidence and findings of all interlocutory and final orders of the agency shall be included in the agency's record of the case and shall be retained by the agency for three (3) years.

7.1.4.6 Decision; Final Order.

7.1.4.6.1 The Secretary shall make his/her decision based upon the entire record of the case and upon summaries and recommendations of the hearing officer.

7.1.4.6.2 Every case decision of the Secretary shall be incorporated in a final order which shall include, where appropriate:

7.1.4.6.2.1 A brief summary of the evidence;

7.1.4.6.2.2 Findings of fact based upon the evidence;

7.1.4.6.2.3 Conclusions of law;

7.1.4.6.2.4 Any other conclusion required by the law or the Department of Labor;

7.1.4.6.2.5 A concise statement of the Department of Labor's determination or action on the case.

7.1.4.6.3 Every final order shall be authenticated by the signature of the Secretary.

7.1.4.6.4 Every final order shall immediately be mailed or delivered to each party, to the contracting agency, and each other person requesting it.

7.1.4.6.5 Every final order may be amended or modified by the same procedure used for the initial adoption of the order.

7.1.4.7 Informal Disposition. Informal disposition may be made of any matter set for hearing by stipulation, agreed settlement, consent order, or default.

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

19 Del. Admin. Code § 1322-8.0 Subsequent Modification of Regulations

The Secretary may, upon his/her own motion or upon the written request of any interested person setting forth reasonable grounds therefore, revoke or modify these regulations, after an opportunity has been given to interested persons to present their views on proposed changes. These regulations shall take effect in accordance with the requirements of the Administrative Procedures Act which is found in 29 Del.C. Ch. 101.

History

1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
1 DE Reg. 519 (11/01/97)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/01/18)
1 DE Reg. 519 (11/01/97)
4 DE Reg. 1186 (01/01/01)
5 DE Reg. 205 (07/01/01)
7 DE Reg. 518 (10/01/03)
19 DE Reg. 415 (11/01/15)
22 DE Reg.403 (11/01/18)

1323 Special Employment Practices Relating to Health Care and Child Care Facilities Adult Abuse Registry Check

19 Del. Admin. Code § 1323 Special Employment Practices Relating to Health Care and Child Care Facilities Adult Abuse Registry Check

1000 DEPARTMENT OF LABOR

1300 Division of Industrial Affairs

1323 Special Employment Practices Relating to Health Care and Child Care Facilities Adult Abuse Registry Check

Pursuant to 29 Del.C. §8503(7), the Department of Labor hereby promulgates the following regulations to provide guidance to employers and applicants regarding the implementation of 19 Del.C. §708, 11 Del.C. §8563 and 11 Del.C. §8564.

1.0 Introduction

1.1 The General Assembly enacted two laws, "Special Employment Practices Relating To Health Care And Child Care Facilities" (19 Del.C. §708 and 11 Del.C. §8563) And "Adult Abuse Registry Check" (11 Del.C. §8564) in order to provide a degree of protection for the "vulnerable" population in hospitals, nursing homes, child care facilities and other institutions. Together, the two laws require employers to obtain a reference check, or "service letter", and check two registries to insure that they are not hiring individuals with a past history of violent behavior in the workplace, or individuals who have engaged in abuse or neglect to adults or children in their care.

2.0 Definitions

2.1 The words, terms and phrases used in these Regulations shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning.

"Child Care Facility" means any child care facility which is required to be licensed by the Department of Services for Children, Youth, and their Families.

"Direct Access" means the opportunity to have personal contact with persons receiving care during the course of one's assigned duties.

"Health Care Facility" means any custodial or residential facility where health, nutritional, or personal care is provided for persons, including nursing homes, hospitals, home health care agencies, and adult day care facilities.

"Person Seeking Employment" means any person applying for employment in a health care or child care facility that affords direct access to persons receiving care at such a facility, or a person applying for licensure to operate a child care facility.

3.0 Service Letter

3.1 Requirements

3.1.1 No employer who operates a health care facility or child care facility shall hire any person seeking employment (as defined in 2.1) without obtaining one or more service letter(s) for that person. The employer must obtain a service letter from the person's current or most recent previous employer. In addition, if the person seeking employment was employed in a health care and/or child care facility within the past five (5) years, the employer shall also obtain a service letter from such employer(s). If the person seeking employment has not been previously employed, or was self-employed, then the employer must require the person seeking employment to provide letters of reference from two adults who are familiar with the person, but are not relatives.

3.1.2 Any temporary agency responsible for providing temporary employees to a health care facility or a child care facility, when such employees qualify as "persons seeking employment" as defined in Section 2.1 of these regulations, is considered an employer and is responsible for complying with the requirements of this section.

3.2 Service Letter Form

3.2.1 The required service letter shall be a form provided by the Department of Labor, Office of Labor Law Enforcement. The service letter form shall be signed by the current or previous employer and shall be filled out by that employer. The service letter form is a checklist requiring information about the type of work performed by the employee; the duration of the employment; the nature of the employee's separation from employment; and information as to any reasonably substantiated incidents involving violence, threat of violence, abuse or neglect by the person seeking employment.

3.3 Duties

3.3.1 Duties of the hiring employer.

3.3.1.1 Service letter(s). The employer must obtain the required service letter(s) by sending a service letter form to all of the current or previous employers named by the person seeking employment. The employer must make a "good faith" attempt to locate the current or previous employers and to obtain the service letter from such employer(s). In order to prove that the service letter form has been sent, an employer may send the form by fax, Certified Mail or other means which provides proof of mailing, transmission, delivery or receipt.

3.3.1.2 Full release from person seeking employment. The employer must obtain a signed statement from the person seeking employment wherein that person authorizes a full release for the employer to obtain information from the current and/or previous employer(s).

3.3.1.3 Complete disclosure of information from person seeking employment. The employer must obtain a signed statement from the person seeking employment that the information he/she has given on the application represents a full and complete disclosure of information about his/her current and previous employment, and that all information contained in the employment application is true and complete to the best of the knowledge and belief of the person seeking employment.

3.3.1.4 Acknowledgment from person seeking employment. The employer must obtain a signed acknowledgment from the person seeking employment that he/she understands that failure to provide a full and complete disclosure is a violation of the law.

3.3.1.5 Exigent circumstances. When exigent circumstances exist, and an employer covered by this law must fill a position in order to maintain the required level of service, the employer may hire a person seeking employment on a conditional basis pending the receipt of the completed service letter(s) for that person. The continued employment of that person, however, is conditioned upon the receipt of the required service letter(s). In addition, the person hired on a conditional basis must be informed in writing and shall acknowledge, in writing, that his/her continued employment is conditional and is contingent upon the receipt of the required service letter(s).

3.3.2 Duties of the person seeking employment.

3.3.2.1 Provision of necessary information. The person seeking employment must provide all of the necessary information about his/her current or past employers so that the service letter(s) can be obtained. If the person seeking employment was employed by a temporary agency, he or she shall list on the employment application the temporary agency and all employers for which he or she did temporary work pursuant to such employment.

3.3.2.2 Full release. The person seeking employment must sign a statement wherein he/she authorizes a full release for the employer to obtain information from the current or previous employment.

3.3.2.3 Complete disclosure of information. The person seeking employment must provide complete and full disclosure of information and must sign a statement in which he/she attests that information given in his/her application represents a full and complete disclosure of information about his/her current or previous employer and is true and correct to the best of his/her knowledge and belief.

3.3.2.4 Acknowledgment. The person seeking employment must sign an acknowledgment that he/she understands that failure to provide a full and complete disclosure of employment information is a violation of the law.

3.3.2.5 Acknowledgment when hired on a conditional basis. When the person seeking employment is hired on a conditional basis, he/she must acknowledge in writing that his/her employment is conditional and contingent upon the receipt of the service letter(s).

3.3.3 Duties of the employer receiving the service letter form.

3.3.3.1 Completion of service letter form. The employer must complete the service letter form, providing complete and truthful information about the person named on the service letter form. The law, specifically 19 Del.C. §708(b)(10), provides that a person who discloses information about a current or former employee is immune from civil liability for such disclosure.

3.3.3.2 Return of the service letter form. The employer receiving the service letter form must complete it and return the service letter to the hiring employer within ten (10) business days from the date the request was received.

4.0 Child Abuse Registry Check

4.1 Requirements

4.1.1 No employer who operates a health care facility or child care facility shall hire any person without requesting and receiving the results of a Child Abuse Registry check for that person. The Child Abuse Registry check shall relate to substantiated cases of child abuse or neglect reported after August 1, 1994. The results of the Child Abuse Registry check shall be obtained from the Child Abuse Registry as established by 16 Del.C. §905.

4.1.2 Any temporary agency responsible for providing temporary employees to a health care facility or child care facility, when such employees qualify as "persons seeking employment" as defined in Section 2.1 of these Regulations, is considered an employer and is responsible for complying with the requirements of this section.

4.2 Duties

4.2.1 Duties of the hiring employer.

4.2.1.1 Full release from person seeking employment. The employer must obtain a signed statement from the person seeking employment wherein that person authorizes a full release for the employer to obtain the information provided pursuant to the Child Abuse Registry check.

4.2.1.2 Obtaining the Child Abuse Registry check. The employer must contact in writing the Division of Children, Youth, and Their Families to request and receive the Child Abuse Registry check.

4.2.1.3 Exigent Circumstances. When exigent circumstances exist and an employer covered by this law must fill a position in order to maintain the required level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested a Child Abuse Registry check. The continued employment of that person, however, is conditioned upon the receipt of the Child Abuse Registry check. Any person hired on a conditional basis must be informed in writing, and must acknowledge in writing that his/her employment is conditional and contingent upon the receipt of the Child Abuse Registry check.

4.2.2 Duties of the person seeking employment.

4.2.2.1 Provision of necessary information. The person seeking employment must provide any and all necessary information so that the Child Abuse Registry check can be completed.

4.2.2.2 Full Release. The person seeking employment must sign a statement wherein he/she authorizes a full release for the employer to obtain the information provided pursuant to the Child Abuse Registry check.

4.2.2.3 Acknowledgment when hired on a conditional basis. When the person seeking employment is hired on a conditional basis, he/she must acknowledge in writing that his/her employment is conditional and contingent upon the receipt of the Child Abuse Registry check.

4.3 Regulations And Procedures

4.3.1 Specific Regulations and procedures for the Child Abuse Registry check shall be promulgated by the Division of Children, Youth, and Their Families.

5.0 Adult Abuse Registry Check

5.1 Requirements

5.1.1 No employer who operates a health care facility or child care facility shall hire any person without requesting and receiving an Adult Abuse Registry check for that person. The Adult Abuse Registry check shall relate to substantiated cases of adult abuse or neglect. The Adult Abuse Registry check shall be performed by the Department of Health and Social Services/ Division of Services for Aging and Adults With Physical Disabilities.

5.2 Duties

5.2.1 Duties of the hiring employer,

5.2.1.1 Full release from person seeking employment. The employer must obtain a signed statement from the person seeking employment wherein that person authorizes a full release for the employer to obtain the information provided pursuant to the Adult Abuse Registry check.

5.2.1.2 Obtaining the Adult Abuse Registry check. The employer must contact the Department of Health and Social Services /Division of Services for Aging and Adults With Physical Disabilitiesto request and receive the Adult Abuse Registry check. The employer may contact that Division by telephone.

5.2.1.3 Exigent circumstances. When exigent circumstances exist and an employer covered by this law must fill a position in order to maintain the required level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested an Adult Abuse Registry check. The continued employment of that person, however, is conditioned upon receipt of the Adult Abuse Registry check. Any person hired on a conditional basis must be informed in writing, and must acknowledge in writing that his/her employment is conditional and contingent upon the receipt of the Adult Abuse Registry check.

5.2.2 Duties of the person seeking employment.

5.2.2.1 Provision of all necessary information. The person seeking employment must provide any and all necessary information so that the Adult Abuse Registry check can be completed.

5.2.2.2 Full release. The person seeking employment must sign a statement wherein he/she authorizes a full release for the employer to obtain the information provided pursuant to the Adult Abuse Registry check.

5.2.2.3 Acknowledgment when hired on a conditional basis. When the person seeking employment is hired on a conditional basis, he/she must acknowledge in writing that his/her employment is conditional andcontingent upon the receipt of the Adult Abuse Registry check.

5.3 Regulations

5.3.1 Specific Regulations and procedures relating to the Adult Abuse Registry check shall be promulgated by the Division of Health and Social Services.

6.0 Enforcement

6.1 Complaint

6.1.1 Any person may file a complaint with the Office of Labor Law Enforcement alleging a violation of any provision of these laws. The complaint shall be in writing, and shall set forth the specifics of any alleged violation. The complaint shall be directed to the Administrator of the Office of Labor Law Enforcement.

6.1.2 Upon receipt of the complaint, the Administrator of the Office of Labor Law Enforcement will assign the complaint to an investigator.

6.2 Investigation

6.2.1 The Office of Labor Law Enforcement may serve notice to the employer informing them of the complaint and requiring proof of compliance with the provisions of these laws. Evidence that may be requested to establish whether an employer has complied with the provisions of these laws includes, but is not limited to, the following:

6.2.1.1 Service letter(s) for each employee hired after January 1, 1998 (or proof that the employer has made a good faith attempt to obtain such service letter(s)).

6.2.1.2 Verification from the Department of Services Children, Youth and Their Families /Division of Family Services that the employer has requested and/or received the required check of the Child Abuse Registry as required by 11 Del.C. §8563.

6.2.1.3 Verification from the Division of Services for Aging and Adults with Physical Disabilities that the employer has requested and/or received the required check of the Adult Abuse Registry as required by 11 Del.C. §8564.

6.2.1.4 Copies of all statements and acknowledgments signed by the person seeking employment.

6.2.1.5 Application forms, personnel records or any other related documents.

6.3 Determination

6.3.1 Upon completion of the investigation, the Office of Labor Law Enforcement will determine whether a violation has occurred. The Office of Labor Law Enforcement may issue a notice requiring corrective action and may notify the Department of Services for Children Youth and Their Families/Division of Family Services and/or the Department of Health and Social Services/Division of Services for Aging and Adults With Physical Disabilities. Such notice will give a specified date on which compliance is required.

6.3.2 Upon proof that corrective action has been taken, the Office of Labor Law Enforcement may issue a warning letter or may forward the matter to the Department of Justice for further legal action.

7.0 Violations and Penalties

7.1 Violations of the law shall include the following:

7.1.1 Failure by the hiring employer to obtain the service letter(s) or make a good faith attempt to do so;

7.1.2 Failure by the hiring employer to obtain the required statements and acknowledgments from the person seeking employment;

7.1.3 Failure by the hiring employer to request and receive the Child Abuse Registry check (Information about this violation will be forwarded to the Department of Services for Children Youth and Their Families/Division of Family Services);

7.1.4 Failure by the hiring employer to request and receive the Adult Abuse Registry check (Information about this violation will be forwarded to the Department of Health and Social Services/Division of Services for Aging and Adults With Physical Disabilities);

7.1.5 Failure by the person seeking employment to provide complete and full disclosure of all information regarding current or previous employers;

7.1.6 Failure by the person seeking employment to provide a full and complete disclosure of any information necessary to obtain the Child Abuse Registry check and the Adult Abuse Registry check (Information about this violation will be forwarded to the appropriate agency);

7.1.7 Failure by the person seeking employment to sign the required statements and acknowledgments;

7.1.8 Failure by the employer receiving a service letter form to provide full and complete disclosure about the person seeking employment;

7.1.9 Failure by the employer receiving a service letter form to complete and return the service letter form.

7.2 Penalties

7.2.1 Violations of any of the provisions of these laws may result in civil penalties of not less than $1,000 nor more than $5,000.

8.0 Severability

8.1 If any of the provisions of 19 Del.C. §708, 11 Del.C. §8563, 11 Del.C. §8564, or these Regulations, or any portion thereof or the application or method of implementation is held invalid, the remainder of the laws and these Regulations shall not be affected by such holding and shall remain in full force and effect.

9.0 Subsequent Modification of Regulations

9.1 The Secretary of Labor may, upon his/her own motion or upon the written request of any member of the public setting forth reasonable grounds therefore, revoke or modify these regulations, after an opportunity has been given to members of the public to present their views on the proposed changes. These regulations shall take effect ten (10) days after publication in the State Register of Regulations.

1324 Wage Payment and Collection Act--Payroll Debit Cards

19 Del. Admin. Code § 1324 Wage Payment and Collection Act--Payroll Debit Cards

1000 DEPARTMENT OF LABOR

1300 Division of Industrial Affairs

1324 Wage Payment and Collection Act--Payroll Debit Cards

The Department of Labor finds payroll debit cards to be beneficial and acceptable as a form of wage payment under the Wage Payment and Collection Act. Under all circumstances, the use of payroll debit cards as a form of wage payment must comply with all conditions set forth in the Act including, but not limited to the following:

• Employers must inform new employees in writing, at the time of hire, when the employer will fulfill the exchange rate obligations (§1108 (1));

• Employers must pay the employee within 7 days from the close of the pay period for the work performed (§1102 (b));

• Employers must pay the employee no less than once a month on a day designated in advance by the employer (§1102 (a));

• Employers must pay the employee in legal tender of cash, check payable on demand, or by credit to the employee’s bank account when requested in writing by the employee (§1102(a));

• Employers must pay the full wages owed on the regular payday and account for lawful deductions specified under §1107 and related regulations; and

• Employers must provide a written record reciting the hours worked, hours paid, benefits accrued, lawful deductions, and any information for historical purposes effecting the wage arrangement for three years (§1108 (4) and (6)).

1.0 Definitions

1.1 “ATM” means the automatic teller machine activated by a magnetically encoded card and the transmission of a code which allows card holders to perform routine banking transactions including the withdrawal of cash.

1.2 “Cash” means lawful money.

1.3 “Credit” means the amount of money which is added to an employee’s bank account.

1.4 “Demand Deposit Account” means funds that an employee or card holder may withdraw from a bank with no advance notice usually by writing a check or using an automatic teller machine.

1.5 “Direct Deposit” means automatic deposit of wages or benefits into an employee’s bank account.

1.6 “Exchange Rate” means the rate agreed upon by the employer and employee as compensation for the performance of work by the employee.

1.7 “Functional Equivalent” means a change in the form of the payment of wages without impacting the substantive rights or value of the employee’s wages. For example, a debit card in lieu of cash, check, or credit must provide the full amount of wages without cost to the employee on the regular payday.

1.8 “Payroll Debit Card” is a card that provides an employee with the appropriate means of obtaining all wages earned in a defined pay period in a form that is the equivalent of payment by cash, check, or direct deposit.

2.0 Payroll Debit Card in Lieu of Cash or Check

Delaware’s Wage Payment and Collection Act requires the payment of wages to employees in lawful money or checks payable on demand, “provided suitable arrangements are made by the employer for cashing such checks for the full amount of the wages due at a bank or other business establishment convenient to the place of employment. Employers may comply with this requirement by issuing a payroll debit card which provides the functional equivalent of cash or a check. It is the employers’ responsibility to effectuate a payroll debit card system which will allow full payment of wages on the employee’s regular payday and without cost to the employee. Employers may use a pre-paid debit card or general payroll fund account to establish suitable arrangements for converting wages into employee’s disposable income.

7 DE Reg. 1761 (6/1/04)

1325 Special Employment Practices Relating to Health Care and Child Care Facilities

19 Del. Admin. Code § 1325 Special Employment Practices Relating to Health Care and Child Care Facilities

1000 DEPARTMENT OF LABOR

1300 Division of Industrial Affairs

1325 Special Employment Practices Relating to Health Care and Child Care Facilities

1.0 Introduction

The General Assembly enacted two laws, "SPECIAL EMPLOYMENT PRACTICES RELATING TO HEALTH CARE AND CHILD CARE FACILITIES" (19 Del.C. §708 and 11 Del.C. §8563) and "ADULT ABUSE REGISTRY CHECK" (11 Del.C. §8564) in order to provide a degree of protection for the "vulnerable" population in hospitals, nursing homes, child care facilities and other institutions. Together, the two laws require employers to obtain a reference check, or "service letter", and check two registries to insure that they are not hiring individuals with a past history of violent behavior in the workplace, or individuals who have engaged in abuse or neglect to adults or children in their care.

2.0 Definitions

The words, terms and phrases used in these Regulations shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning.

"Child Care Facility" means any child care facility which is required to be licensed by the Department of Services for Children, Youth, and Their Families.

"Direct Access" means the opportunity to have personal contact with persons receiving care during the course of one's assigned duties.

3.0 Service Letter

3.1 Requirements

3.1.1 No employer who operates a health care facility or child care facility shall hire any person seeking employment (as defined above) without obtaining one or more service letter(s) for that person. The employer must obtain a service letter from the person's current or most recent previous employer. In addition, if the person seeking employment was employed in a health care and/or child care facility within the past five (5) years, the employer shall also obtain a service letter from such employer(s). If the person seeking employment has not been previously employed, or was self-employed, then the employer must require the person seeking employment to provide letters of reference from two adults who are familiar with the person, but are not relatives.

3.1.2 Any temporary agency responsible for providing temporary employees to a health care facility or child care facility, when such employees qualify as "persons seeking employment" as defined in Section II. A. of these Regulations, is considered an employer and is responsible for complying with the requirements of this section.

3.2 Service Letter Form

3.3 Duties

3.3.1 Duties of the hiring employer.

3.3.1.3 Complete disclosure of information from person seeking employment. The employer must obtain a signed statement from the person seeking employment attesting that the information he/she has given on the application represents a full and complete disclosure of information about his/her current and previous employment, and that all information contained in the employment application is true and complete to the best of the knowledge and belief of the person seeking employment.

3.3.1.4 Acknowledgement from person seeking employment. The employer must obtain a signed acknowledgement from the person seeking employment that he/she understands that failure to provide a full and complete disclosure is a violation of the law.

3.3.1.5.1 In addition, the person hired on a conditional basis must be informed in writing and shall acknowledge, in writing, that his/her continued employment is conditional and is contingent upon the receipt of the required service letter(s).

3.3.2 Duties of the person seeking employment.

3.3.2.1.1 If the person seeking employment was employed by a temporary agency, he or she shall list on the employment application the temporary agency and all employers for which he or she did temporary work pursuant to such employment.

3.3.2.2 Full release. The person seeking employment must sign a statement wherein he/she authorizes a full release for the employer to obtain information from the current or previous employers.

3.3.2.3 Complete disclosure of information. The person seeking employment must provide complete and full disclosure of information, and must sign a statement in which he/she attests that information given in his/her application represents a full and complete disclosure of information about his/her current or previous employer and is true and correct to the best of his/her knowledge and belief.

3.3.2.4 Acknowledgement. The person seeking employment must sign an acknowledgement that he/she understands that failure to provide a full and complete disclosure of employment information is a violation of the law.

3.3.2.5 Acknowledgement when hired on a conditional basis. When the person seeking employment is hired on a conditional basis, he/she must acknowledge in writing that his/her employment is conditional and contingent upon the receipt of the service letter(s).

3.3.3 Duties of the employer receiving the service letter form.

3.3.3.1 Completion of service letter form. The employer must complete the service letter form, providing complete and truthful information about the person named on the service letter form. The law, specifically 19 Del.C. §708(b)(10), provides that a person who discloses information about a current or former employee on a service letter form is immune from civil liability for such disclosure.

3.3.3.2 Return of the service letter form. The employer receiving the service letter form must complete and return the service letter to the hiring employer within ten (10) business days from the date the request was received.

4.0 Child Abuse Registry Check

4.1 Requirements.

4.1.2 Any temporary agency responsible for providing temporary employees to a health care facility or child care facility, when such employees qualify as "persons seeking employment" as defined in Section I. A. of these Regulations, is considered an employer and is responsible for complying with the requirements of this section.

4.2 Duties

4.2.1 Duties of the hiring employer.

4.2.1.2 Obtaining the Child Abuse Registry check. The employer must contact in writing the Department of Children, Youth, and Their Families to request and receive the Child Abuse Registry check.

4.2.2 Duties of the person seeking employment.

4.2.2.1 Provision of necessary information. The person seeking employment must provide any and all necessary information so that the Child Abuse Registry check can be completed.

4.2.2.3 Acknowledgement when hired on a conditional basis. When the person seeking employment is hired on a conditional basis, he/she must acknowledge in writing that his/her employment is conditional and contingent upon receipt of the Child Abuse Registry check.

4.2.3 Regulations and Procedures

4.2.3.1 Specific Regulations and procedures for the Child Abuse Registry check shall be promulgated by the Department of Children, Youth, and Their Families.

5.0 Adult Abuse Registry Check

5.1 Requirements

5.1.1 No employer who operates a health care facility or child care facility shall hire any person without requesting and receiving an Adult Abuse Registry check for that person. The Adult Abuse Registry check shall relate to substantiated cases of adult abuse or neglect. The Adult Abuse Registry check shall be performed by the Department of Health and Social Services/Division of Services for Aging and Adults With Physical Disabilities.

5.2 Duties

5.2.1 Duties of the hiring employer.

5.2.1.2 Obtaining the Adult Abuse Registry check. The employer must contact the Department of Health and Social Services/Division of Services for Aging and Adults With Physical Disabilities to request and receive the Adult Abuse Registry check. The employer may contact that Division by telephone.

5.2.2 Duties of the person seeking employment.

5.2.2.1 Provision of all necessary information. The person seeking employment must provide any and all necessary information so that the Adult Abuse Registry check can be completed.

5.2.2.3 Acknowledgement when hired on a conditional basis. When the person seeking employment is hired on a conditional basis, he/she must acknowledge in writing that his/her employment is conditional and contingent upon receipt of the Adult Abuse Registry check.

5.2.3 Regulations and Procedures

5.2.3.1 Specific Regulations and procedures relating to the Adult Abuse Registry check shall be promulgated by the Department of Health and Social Services.

6.0 Enforcement

6.1 Complaint

6.1.2 Upon receipt of the complaint, the Administrator of the Office of Labor Law Enforcement will assign the complaint to an investigator.

6.2 I nvestigation

6.2.1.1 Service letter(s) for each employee hired after January 1, 1998 (or proof that the employer has made a good faith attempt to obtain such service letter(s)).

6.2.1.2 Verification from the Department of Services Children, Youth and Their Families/Division of Family Services that the employer has requested and/or received the required check of the Child Abuse Registry as required by 11 Del.C. §8563.

6.2.1.4 Copies of all statements and acknowledgements signed by the person seeking employment.

6.2.1.5 Application forms, personnel records or any other related documents.

6.3 Determination

6.3.1 Upon completion of the investigation, the Office of Labor Law Enforcement will determine whether a violation has occurred. The Office of Labor Law Enforcement may issue a notice requiring corrective action and may notify the Department of Services for Children, Youth and Their Families/Division of Family Services and/or the Department of Health and Social Services/Division of Services for Aging and Adults With Physical Disabilities. Such notice will give a specified date on which compliance is required.

6.3.2 Upon proof that corrective action has been taken, the Office of Labor Law Enforcement may issue a warning letter or may forward the matter to the Department of Justice for further legal action.

7.0 Violations and Penalties

7.1 Violations of the law shall include the following:

7.1.1 Failure by the hiring employer to obtain the service letter(s) or make a good faith attempt to do so;

7.1.2 Failure by the hiring employer to obtain the required statements and acknowledgements from the person seeking employment;

7.1.3 Failure by the hiring employer to request and receive the Child Abuse Registry check (information about this violation will be forwarded to the Department of Services for Children, Youth and Their Families/Division of Family Services);

7.1.4 Failure by the hiring employer to request and receive the Adult Abuse Registry check (information about this violation will be forwarded to the Department of Health and Social Services/Division of Services for Aging and Adults With Physical Disabilities);

7.1.5 Failure by the person seeking employment to provide complete and full disclosure of all information regarding current or previous employers;

7.1.6 Failure by the person seeking employment to provide a full and complete disclosure of any information necessary to obtain the Child Abuse Registry check and the Adult Abuse Registry check (information about this violation will be forwarded to the appropriate agency);

7.1.7 Failure by the person seeking employment to sign the required statements and acknowledgements;

7.1.8 Failure by the employer receiving a service letter form to provide full and complete disclosure about the person seeking employment;

7.1.9 Failure by the employer receiving a service letter form to complete and return the service letter form.

7.2 Penalties

7.2.1 Violations of any of the provisions of these laws may result in civil penalties of not less than $1,000 nor more than $5,000.

8.0 Severability

If any of the provisions of 19 Del.C. §708, 11 Del.C. §8563, 11 Del.C. §8564, or these Regulations, or any portion thereof or the application or method of implementation is held invalid, the remainder of the laws and these Regulations shall not be affected by such holding and shall remain in full force and effect.

9.0 Subsequent Modification of Regulations

The Secretary of Labor may, upon his/her own motion or upon the written request of any member of the public setting forth reasonable grounds therefore, revoke or modify these regulations, after an opportunity has been given to members of the public to present their views on the proposed changes. These regulations shall take effect ten (10) days after publication in the Delaware Register of Regulations.

Darrell J. Minott, Secretary of Labor

Approved and adopted this 9th day of January, 1998.

1326 Workplace Fraud Act Regulations

19 Del. Admin. Code § 1326-1.0 General Provisions

1.1 Purpose and scope.

1.2 Address; office hours.

1.2.1 Questions may be addressed to "Office of Labor Law Enforcement - Administrator" at 4425 North Market Street, Wilmington Delaware 19802. The office is open daily from 8:00 a.m. to 4:30 p.m. except Saturdays, Sundays, and Legal Holidays.

1.3 Definitions.

1.3.1 The terms “attempts to violate”, "Construction services", “Contractor”, "Debarment", "Department", "Employee", "Employer", "Exempt person", “General contractor”, "Independent contractor", "Knowingly", “Labor Broker”, “Outside of the usual course of business”, “Place of business”, "Public body", "Secretary", "Secretary of Labor", “Stop work order", and "Violate", when used in this regulation, shall have the meanings set forth in the Workplace Fraud Act.

1.3.2 The following words and terms, when used in this regulation, shall have the following meanings:

"Administrator" means the Office of Labor Law Enforcement Administrator or their designee.

"Corporate officer" or "officer of a corporation" means any person who fills an office provided for in the corporate charter or articles of incorporation. As to persons engaged in the construction industry, the term "officer of a corporation," includes a member owning at least 10 percent of a limited liability company.

"Day" means calendar day unless otherwise specified.

"Party" means any employee, employer or the Department of Labor.

1.4 Attorneys; form of appearance on behalf of parties.

1.4.1 An attorney admitted to practice before the State of Delaware Supreme Court may appear on behalf of a party by providing written notice of appearance. To constitute an appearance, a form, letter, or document shall contain the names of the parties, the Department’s docket number if known, the name of the party that the attorney represents, and the attorney's address, telephone number, facsimile number, and e-mail address.

1.4.2 If a party appears through an attorney, all papers shall be served on the attorney with the same force and effect as though served on the client.

1.4.3 An attorney may withdraw his appearance by providing written notice of withdrawal to the Department, certifying that a copy of the notice of withdrawal was mailed to all parties.

1.5 Parties' obligation to keep department informed of change of address or status. The parties shall promptly notify the Department of any change in address, telephone number, contact information, or other material change in business status while the charge is pending.

1.6 Liberal construction of regulations. These regulations shall be liberally construed by the administrator to permit the Department to discharge its statutory duties under the Workplace Fraud Act.

1.7 Practice where regulations do not govern. In any circumstance that arises not governed by these regulations, the administrator shall exercise his discretion in order to permit the Department to discharge its statutory duties under the Workplace Fraud Act while ensuring procedural due process to employers and other parties.

1.8 Validity of regulations if any portion declared invalid. If any portion of these regulations is adjudged by a court of competent jurisdiction to be invalid, or if by legislative action any portion loses its force and effect, the ruling or action will not affect, impair or void the remainder of these regulations.

1.9 Amendment of regulations. The administrator may rescind, amend or expand these regulations from time to time as necessary to comply with the purpose of the Workplace Fraud Act and such new regulations shall be submitted to the Registrar's office in accordance with the provisions of 29 Del.C. §10161(b).

1.10 Examples of Workplace Fraud. Pursuant to 19 Del.C. §3503(f), the following examples are provided to demonstrate violations of the Workplace Fraud Act. These examples are by no means exhaustive. These examples involve individuals and or entities who are not registered contractors under 19 Del.C. Ch. 36 Delaware’s Contractor Registration Act or those individuals and entities who do not meet the definitions of Exempt Person/ Independent Contractor as defined in 19 Del.C. §3501(6), (7).

A. John Smith has an oral agreement with ABC Building Company (ABC) to do carpentry work on houses in a development designated by ABC. John Smith supplies his own hand tools and has his own business license. ABC supplies the material for each job. He has to do the work himself and he works on a full time basis for the company. For some work he is paid on a piecework basis and for some work he is paid on an hourly basis. He does not have assistants, does not have an office, and does not advertise in newspapers or otherwise hold himself out to the public as being in the carpentry business. ABC can fire him any time before he finishes a job without contractual liability. John Smith is an employee of ABC. Violation 3503(c).

B. Sarah Green is a painting subcontractor who has contracted with XYZ General Contracting, Inc. (XYZ) to paint 264 houses. She in turn hired 40 painters to do the work for her and as condition of employment requires the 40 painters to obtain business licenses before they can start work and they will receive a 1099 tax document at the completion of the project, although only about 15 are on the job at any one time. She supplies all the paint, brushes, and ladders. She designates the house to be painted and either pays the painters per house or by the hour. Detailed instructions about the work are not necessary because of the painters' skill in their trade. Sarah Green inspects the work and requires them to repaint any unsatisfactory work. The painters cannot engage helpers without her consent. She can discharge them for any reason, and they are free to resign at any time. The painters assume no business risks and have no capital investment. The painters are employees of Sarah Green, not XYZ, and Sarah Green is an independent contractor, not an employee of XYZ. Violation 3503(c).

C. Chris Johnson, an experienced tile and terrazzo journeyman, orally agreed with Floor, Inc. (Floor) to perform full-time services at construction sites. He uses his own tools and performs services in the order designated by Floor, Inc. and according to its specifications. Floor, Inc. supplies all materials, makes frequent inspections of his work, pays him on a piecework basis, and carries workers' compensation insurance on him. He does not have a place of business or hold himself out to perform similar services for others. Either party can end the services at any time. Chris Johnson is an employee of Floor, Inc. Violation 3503 (c).

D. Person A employs workers from a temporary agency. These workers are never given a chance to become permanent hires. Their contracts are continually renewed by Person A, with no opportunity provided to become full-fledged employees. Person A classifies them as independent contractors. Violation 3503 (c).

E. Person A and Person B are co-owners of Construction Company X. At the suggestion of Person A, Person B assists in the incorporation of Subsidiary Company Y, nominally owned by his relative, Person C. When Construction Company X receives a contract, it sub-contracts the work on this contract to Subsidiary Company Y. Subsidiary Company Y hires the employees of Construction Company X, and treats them as independent contractors. Violation 3503(d), 3503(e).

F. Attorney A advises Contractor B to create a corporation separate and distinct from his primary business. When his primary business receives contracts, Attorney A advises him to employ the employees from his primary business in the separate corporation as independent contractors. Violation 3503(e).

G. Person A enters into a "sub-contracting agreement" with "Worker B, LLC" and "Worker C, LLC." These workers are paid once per week at an hourly rate by Person A. Person A provides all materials and tools for them to complete the project. Person A provides them with the truck they use for hauling materials, and they report to Person A's business location at the start of the workday to receive instruction from Person A concerning the work they will perform. No sub-contracting agreements are drafted or signed. As a condition of entry into these "sub-contracting agreements" and of employment on the project, Workers B and C are required to obtain business licenses through the efforts of Person B, who is employed by Person A. Bid forms do not list any of the sub-contractors. Violation 3503(c), 3503(d), 3503(e).

H. Contractor A advertises their company provides various construction services, such as drywall installation, and bids on and is awarded the drywall portion of a construction project. Contractor A will not perform any portion of the drywall work but will contact Contractor B to provide workers for the project with negotiated hourly wages. Contractor A asks Contractor B how many workers they are capable of supplying? Contractor B states “we can bring up to 10 workers”. Contractor B states the workers they will bring for the drywall installation will be on the project every day until finished and will work 55 hours per week paid at a straight hourly rate with no overtime payments. Contractor B classifies the workers as independent contractors and provides the workers 1099 miscellaneous tax forms. Violation 3503 (a), (b), (c), (d).

History

21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
13 DE Reg. 1342 (04/01/10)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)

19 Del. Admin. Code § 1326-2.0 Commencement of Actions

2.1 Manner of commencing actions. An action may be commenced by the filing of a complaint with the Department’s Office of Labor Law Enforcement.

2.2 Who may file a complaint. An employee or the Department on its own may file a complaint alleging a violation of the Workplace Fraud Act.

2.3 Preparation and contents of a complaint.

2.3.1 A complaint shall be filed on a printed form approved by the administrator.

2.3.2 The Department shall assist the employee in the completion of the complaint where necessary.

2.3.3 The complaint shall indicate that it is filed with the Department, and shall set forth the following:

2.3.3.1 The employee's full name, address, and telephone number;

2.3.3.2 The employer's full name, address, and telephone number if known;

2.3.3.3 A brief statement of jurisdiction identifying the nature, date of, and location of the employment relationship;

2.3.3.4 The specific prohibited basis or bases that gave rise to the filing of the complaint; or

2.3.3.5 A brief statement of the facts deemed to constitute the alleged violation.

2.4 Filing a complaint. The filing of a complaint is perfected when received by an official of the Office of Labor Law Enforcement.

History

21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
13 DE Reg. 1342 (04/01/10)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)

19 Del. Admin. Code § 1326-3.0 Investigation

3.1 Timing of investigations.

3.1.1 The Department shall promptly initiate an investigation into alleged violations when:

3.1.1.1 The Department received a complaint; or

3.1.1.2 The Department, on its own motion, determines to initiate an investigation.

3.1.2 The Department shall complete its investigation as promptly as possible.

3.2 Investigatory procedures.

3.2.1 All investigatory powers granted by 19 Del.C. §3504 shall be available to the Department. In its discretion, the Department may conduct investigations using, among other things, written requests for information, investigatory conferences, subpoenas, on-site visits, interviews, and depositions as provided by these regulations.

3.2.2 In connection with an investigation, the Department may require the submission of information relating to:

3.2.2.1 The employer's books and records;

3.2.2.2 The employment records of employees;

3.2.2.3 The employer's accounts and payroll records;

3.2.2.4 The employer's procedures for hiring and selecting employees; and

3.2.2.5 Such other information as the department determines to be reasonably necessary to carry out the provisions of the Workplace Fraud Act.

3.3 Requests for Information. The Department may serve requests for information to assist the Department in its investigation. Unless otherwise specified in a request for information, the response shall be due to the Department within 15 days from the date of the request.

3.4 On-Site Visits.

3.4.1 The Department may conduct on-site visits to assist in the investigatory process for the purpose of gathering evidence, interviewing witnesses, observing a employer's place of business or work site, and reviewing documents.

3.4.2 The Department is not required to provide the employer with any notice prior to its on-site visit.

3.4.3 The employer shall grant access to its premises, documents, and employees during the Department’s on-site visit.

3.5 Subpoenas

3.5.1 The administrator may issue a subpoena as he deems necessary to assist the investigatory process. The administrator shall issue a subpoena in the name of the Department, and the subpoena shall direct the person designated to personally appear and bring any books, records, documents and any other evidence that relates to any violation under investigation, or, in lieu of personal appearance, to produce any books, records, documents and any other evidence which relates to any violation under investigation.

3.5.2 A subpoena shall state the time and place where the person designated is directed to appear.

3.5.3 A subpoena shall be served either by personal service by any person 18 or more years of age by delivery of a copy thereof to the person named therein, by overnight delivery by commercial courier, or by registered or certified mail, return receipt requested.

3.6 Depositions. The Department may take depositions of witnesses under oath as part of any investigation when, in the discretion of the administrator, such depositions will aid the investigatory process.

3.7 Enforcement of subpoenas. If any person fails to comply with a subpoena issued by the Department, they shall be subject to the appropriate enforcement provisions of the Workplace Fraud Act.

3.8 Final Determinations

3.8.1 Issuance of findings.

3.8.1.1 Following the completion of an investigation, the administrator shall determine whether or not the employer violated or committed an unlawful employment practice in violation of the Workplace Fraud Act.

3.8.1.2 If the administrator determines after completion of an investigation that the employer has violated one (1) or more of the provisions of the Workplace Fraud Act, the administrator will issue a violation determination. This determination will specify the violations which occurred, and will specify which penalties will be imposed pursuant to the Workplace Fraud Act.

3.8.1.3 If the administrator determines after completion of an investigation that no violations of the provisions of the Workplace Fraud Act have occurred, the administrator will issue a no violation determination.

3.8.1.4 If the administrator determines after completion of an investigation that the employer has violated some but not all of the alleged violations, the administrator will issue a violation determination as to those violations which the Department has determined has occurred, and a no violation determination as to those violations which the Department determines no violation has occurred. This determination will also specify which penalties will be imposed pursuant to the Workplace Fraud Act.

3.8.1.5 The final determination will be sent to the parties by certified mail, return receipt, and shall include notice to the employer of the opportunity to appeal in accordance with applicable law and these regulations.

3.9 Administrative Hearings.

3.9.1 Administrative hearings may be requested by either the Department of Labor or the employer. The opportunity to request such a hearing shall occur once the employer has received formal written notification from the Department of Labor that it has found the employer in violation of one or more of the provisions of the Workplace Fraud Act. The notification letter shall also inform the employer of the deadline for them to request an administrative hearing. The deadline shall be 20 days from the date of the issuance of the written notification.

3.9.2 The Secretary of the Department of Labor may serve as hearing officer in the hearing, or may appoint a designee to serve as hearing officer in his or her behalf. The hearing officer will rule upon all motions and questions relating to the administrative hearing.

3.9.3 The hearing officer is empowered to:

3.9.3.1 Issue subpoenas for witnesses and other sources of evidence, either on the agency's initiative or at the request of any party;

3.9.3.2 Administer oaths to witnesses;

3.9.3.3 Exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence;

3.9.3.4 Limit unduly repetitive proof, rebuttal and cross-examination; and

3.9.3.5 Cause interrogatories to issue and depositions to be taken.

3.9.4 At least two weeks before the scheduled administrative hearing, counsel (or the parties themselves, if pro se) shall participate in a scheduled status conference with the hearing officer. Status conferences may be in person or by telephone. The purposes of this conference will be to resolve any outstanding scheduling matters; to simplify factual and legal issues by stipulation; to resolve any discovery disputes or other preliminary or procedural matters; to pre-mark for identification and admission into evidence all stipulated exhibits; and to afford the parties the opportunity to discuss the admissibility or exclusion of any outstanding evidentiary issues. The hearing officer will permit the parties to argue their positions, and may issue a ruling either during the conference or by subsequent written decision. The status conference may be waived by the written stipulation of the opposing parties. In the absence of such a stipulation, failure to participate in the status conference may result in a finding contrary to the party which fails to participate in the status conference.

3.9.5 Prior to the administrative hearing, or at any time when directed by the hearing officer, the Department of Labor will make available to the employer all documents and records relevant to its decision, unless prohibited by statute or the confidentiality rights of others, or the documents in question are protected by attorney-client or other evidentiary privilege. Personal identifying information and confidential sources shall be redacted from any such disclosure. The hearing officer may at any time also direct the employer to make available to the Department any appropriate documents and records requested by the Department, and any evidence the employer intends to introduce during the administrative hearing. Failure to comply with this directive by the Department may result in dismissal of the alleged violation upon application of the employer to the hearing officer, who shall give the Department the opportunity to respond prior to reaching a decision upon the dismissal. Failure to comply with this directive by the employer may result in the dismissal of their appeal, and the hearing officer may then impose statutory penalties in accordance with the Workplace Fraud Act, upon application of the Department to the hearing officer, who shall give the employer the opportunity to respond prior to reaching a decision upon the dismissal.

3.9.6 The hearing officer shall rule on requests for changing the timing, manner, or location of the hearing. Such requests shall be made to the hearing officer within a reasonable time prior to the hearing. The opposing party shall have the right to oppose such a request. In ruling on such a request the hearing officer shall include consideration of the sufficiency of the grounds for the request, the length of time appropriate for a continuance, and the degree of prejudice, if any, to the party opposing the request.

3.9.7 At the administrative hearing, any party or his or her representative shall have the opportunity to produce witnesses and cross-examine adverse witnesses; to express all pertinent facts and circumstances through evidence, oral or written; to advance any arguments without undue interference; and to question or refute any testimony or evidence.

3.9.8 The burden of proving facts alleged as the basis for its decision shall be on the Department by a preponderance of the evidence. The burden of proof regarding any affirmative defenses shall be on the employer by a preponderance of the evidence.

3.9.9 The rules of evidence applied in civil cases by the courts of the State of Delaware shall not be strictly followed. The hearing officer may allow evidence not admissible under these rules of evidence where, in his or her judgment, application of the exclusionary rule would result in unnecessary hardship and the evidence offered is of a kind commonly relied upon by reasonably prudent persons in the conduct of their affairs. Hearsay may be admissible in administrative hearings, but may not constitute the sole basis for the hearing officer's determination upon the factual issue addressed by the hearsay evidence.

History

21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
13 DE Reg. 1342 (04/01/10)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)

19 Del. Admin. Code § 1326-4.0 Administrative Dismissal

4.1 The administrator or hearing officer may in his discretion administratively dismiss a complaint for reasons including but not limited to the following:

4.1.1 Lack of jurisdiction;

4.1.2 The employee is unavailable or unwilling to participate in the investigation, or to attend a scheduled conference, deposition or hearing;

4.1.3 Relief is precluded by special circumstances as determined by the administrator or hearing officer;

4.1.4 The complaint on its face fails to state a claim under the Workplace Fraud Act.

4.2 Prior to administratively dismissing a complaint, the administrator or hearing officer shall notify the employee of the reason for the proposed dismissal and shall offer the employee the opportunity to respond. The administrator or hearing officer shall make his final determination, considering all responses received within 15 days of the date of notice to the employee.

History

21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
13 DE Reg. 1342 (04/01/10)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)

19 Del. Admin. Code § 1326-5.0 Enforceability of Settlement Agreements

5.1 A settlement agreement reached during an investigation shall be set forth in writing and signed by the parties.

5.2 Allegations of breach of a settlement agreement shall be brought to the attention of the administrator or hearing officer, depending upon which is responsible for enforcing settlement agreements in the matter at the time of the alleged breach. The administrator or hearing officer shall review and investigate the allegations of breach of a settlement agreement to determine whether a breach has occurred.

5.3 The administrator or hearing officer shall issue written findings to the parties with regard to the allegation of breach of a settlement agreement.

5.4 The administrator or hearing officer in his discretion will determine whether to forward allegations of breach of the settlement agreement to the Attorney General for review.

History

21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
13 DE Reg. 1342 (04/01/10)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)

19 Del. Admin. Code § 1326-6.0 Access to Department's Investigatory Files

6.1 Confidentiality of Department’s investigatory files. The Department’s investigatory records are confidential and exempt from public access under 29 Del.C. Ch. 100 except to the extent required by subsections 3.9.5 and 3.9.8 of this regulation.

6.2 Discovery of Department’s investigatory files by non-parties. Non-parties to an investigation shall not have access to the material in the Department’s investigatory files.

6.3 Copying Costs. The Department’s fee for copying documents requested under this section shall be the same fee as is applicable to requests granted pursuant to 29 Del.C. Ch. 100. The administrator or hearing officer may waive or modify this fee in the case of an indigent party or in other extraordinary situations for good cause.

History

21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
13 DE Reg. 1342 (04/01/10)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)

19 Del. Admin. Code § 1326-7.0 Retention of Investigatory Files

The Department shall retain investigatory files for three years after the end of the administrative process or longer if the Department deems necessary.

History

21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)
13 DE Reg. 1342 (04/01/10)
21 DE Reg. 237 (09/01/17)
25 DE Reg. 287 (09/01/21)

1327 Rules Relating to Exemptions from Meal Break Requirement

19 Del. Admin. Code § 1327 Rules Relating to Exemptions from Meal Break Requirement

Pursuant to the provision of 19 Del.C. §707(a), the Secretary of Labor hereby promulgates the following rules relating to exemptions from the meal break requirements of the statute.

19 Del. Admin. Code § 1327-1.0 Introduction

On July 10, 1992, Senate Bill 143 (as amended by Senate Amendment No. 1) was signed into law. It is codified at 19 Del.C. §707(a). The law requires that employers allow employees a meal break of at least thirty (30) consecutive minutes to employees who will be working seven and one-half (7 1/2) consecutive hours. The break must be given some time after the first two hours of work and before the last two hours. The break need not be a paid break. However, employees must be completely relieved from their duties during the break and the break time is to be free and uninterrupted time.

19 Del. Admin. Code § 1327-2.0 Exemptions

2.1 Although the law provides that the following types of employees do not have to be given a meal break of at least thirty (30) consecutive minutes, the employer must allow the employee to eat meals at their work stations or other authorized locations and to use restroom facilities as reasonably necessary. Employees covered by these exemptions must be compensated for the time spent eating at their work stations and using restroom facilities.

2.1.1 Adverse effects on public safety. The thirty-minute break requirement does not apply in cases where compliance would adversely affect public safety. Compliance would “adversely affect public safety” when there is a possibility that injury, harm or damage could occur to any person or property if an employee were to be given the statutory thirty-minute break.

2.1.2 Single employee duties. The thirty-minute meal break requirement does not apply in cases where only one employee performs the duties of a position. This exemption applies when there is only one person reasonably available to perform the duties of a position.

2.1.3 Fewer than five workers on a shift. The thirty-minute meal break requirement does not apply in cases where an employer has fewer than five employees on a shift at a single place of business. “Place of business” means a single integrated operating or functional unit at a single geographical location. This exemption applies only to the shift on which fewer than five employees are working.

2.1.4 Employer’s continuous operations. The thirty-minute meal break requirement does not apply in cases where the continuous nature of an employer’s operations, such as chemical production, research experiments or health care services requires employees to respond to urgent or unusual conditions at all times. Likewise, employers operating consecutive, non-overlapping shifts may provide meal breaks of no less than twenty (20) consecutive minutes if employees are compensated for all such meal breaks.

19 Del. Admin. Code § 1327-3.0 Retaliation

Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the Department of Labor regarding a violation of these rules, or because he/she caused to be instituted or is about to cause to be instituted any proceedings under this sections, or has testified or is about to testify in such proceedings shall be deemed in violation of this section and be subject to an administrative penalty of not more than $1,000 for each such violation. 19 Del.C. §707(b).

Approved this 17th day of March, 1993

Darrell J. Minott, Secretary of Labor

1328 Rules Regulating Deductions from Wages for Wage Payment and Collection

19 Del. Admin. Code § 1328-1.0 Definitions

As used herein:

"Check" means a draft drawn on a bank and payable on demand.

"_Department" means the Department of Labor or its authorized representatives.

"Employee" means any person suffered or permitted to work by an employer under a contract of employment either made in Delaware or to be performed wholly or partly therein.

"Employer" means any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee or successor of any of the same employing any person.

"Wages" means compensation for labor or services rendered by an employee, whether the amount is fixed or determined on a time, task, piece, commission, or other basis of calculation.

19 Del. Admin. Code § 1328-2.0 Shortage Deductions

2.1 Cash and/or inventory shortages may not be deducted from an employee's pay in any case. Any written agreement permitting an employer to make such deductions is in violation of §1107.3 of the Wage Payment and Collection Act.

2.2 These regulations also will apply to shortages incurred as a result of failure to follow proper credit card, check cashing, or accounts receivable procedures.

19 Del. Admin. Code § 1328-3.0 Cash Advances and Charges for Goods or Services

3.1 If a cash advance or charges for goods or services are to be repaid through payroll deductions, both the employer and the employee must sign a written agreement specifying the amount of the advance or the value of the goods or services, the repayment schedule, and the method of repayment.

3.2 No such agreement shall provide for a repayment schedule of more than 15% of an employee’s gross wages per pay period.

3.3 If, upon termination, an employee owes an amount greater than 15% of gross wages, that amount may be withheld from the employee's final compensation, but only if such an arrangement was included in the original agreement.

19 Del. Admin. Code § 1328-4.0 Damaged Property

A financial loss suffered by an employer due to damage to the employer’s property or to that of a customer or client may not be deducted from an employee's pay in any case. Any written agreement permitting an employer to make such deductions is in violation of §1107.3 of the Wage Payment and Collection Act.

19 Del. Admin. Code § 1328-5.0 Return of Employer's Property

5.1 In no case shall an employer withhold all or part of the final compensation due an employee while the employer awaits return of property in the possession of the employee. Any written agreement which permits such withholding is in violation of §1107.3 of the Wage Payment and Collection Act.

5.2 An employer may request that a deposit be paid on a particular piece of property but such a deposit may not be deducted from the employee's wages without the employee's written consent. If the deposit is to be paid out of the employee's wages, the full deduction must be made by the first regular payday following the issuance of the property to the employee.

5.3 A deposit must be returned to the employee along with any financial compensation, provided the employee has returned the property on which the deposit was paid.

5.4 If property is returned after all other final compensation has been paid, the deposit on the property must be given to the employee immediately upon return of the property, if possible, but in no case later than the next regular payday.

19 Del. Admin. Code § 1328-6.0 Miscellaneous Provisions

6.1 Nothing in these regulations should be construed as preventing an employee from voluntarily reimbursing an employer.

6.2 Acceptance by an employee of a disputed amount of wages will not be considered evidence that the employee has agreed to the deductions in question.

6.3 The Secretary of Labor may, at any time, upon the Secretary’s own motion or upon written request of any interested person setting forth reasonable grounds therefor, and after opportunity has been given to interested persons to present their views, amend or revoke any of the terms of these regulations.

Approved this 1st day of February, 1979

Donald P. Whiteley, Secretary of Labor

1329 Delaware Contractor Registration Act Regulations

19 Del. Admin. Code § 1329-1.0 General Provisions

1.1 Purpose and scope. The regulations set forth in this part contain the procedures established by the Department of Labor for carrying out its responsibilities in the administration and enforcement of 19 Del.C. §3601 et seq., the Delaware Contractor Registration Act.

1.2 Address; office hours. Questions may be addressed to: Office of Labor Law Enforcement Contractor Registration Administrator at 4425 North Market Street, Wilmington Delaware 19802. The office is open daily from 8:00 a.m. to 4:30 p.m. except Saturdays, Sundays, and Legal Holidays.

1.3 Definitions.

1.3.1 Except as otherwise specified below, the terms used in this regulation shall have the meanings set forth in the Delaware Contractor Registration Act. Where the meanings of terms are not defined in the Delaware Contractor Registration Act or below, their meanings shall be inferred from other applicable statutes or case law.

1.3.2 The following words and terms, when used in this regulation, shall have the following meanings:

"Administrator" means the Office of Contractor Registration Administrator or their designee.

"Day" means calendar day unless otherwise specified.

"Hearing" means an administrative hearing pursuant to 19 Del.C. §3608 before the Delaware Secretary of Labor or their designee.

"Party" means any employee, employer or the Department of Labor.

"Secretary" or "Secretary of the Department of Labor" means the Secretary of the Delaware Department of Labor or their designee.

1.4 Attorneys; form of appearance on behalf of parties.

1.4.1 An attorney admitted to practice before the State of Delaware Supreme Court may appear on behalf of a party by providing written notice of appearance. To constitute an appearance, a form, letter, or document shall contain the names of the parties, the Department's docket number if known, the name of the party that the attorney represents, and the attorney's address, telephone number, facsimile number, and e-mail address.

1.4.2 If a party appears through an attorney, all papers shall be served on the attorney with the same force and effect as though served on the client.

1.4.3 An attorney may withdraw his appearance by providing written notice of withdrawal to the Department, certifying that a copy of the notice of withdrawal was mailed to all parties.

1.5 Parties' obligation to keep Department informed of change of address or status. The parties shall promptly notify the Department of any change in address, telephone number, contact information, or other material change in business status while the charge is pending.

1.6 Liberal construction of regulations. These regulations shall be liberally construed by the Administrator to permit the Department to discharge its statutory duties under the Delaware Contractor Registration Act.

1.7 Practice where regulations do not govern. In any circumstance that arises not governed by these regulations, the Administrator shall exercise discretion in order to permit the Department to discharge its statutory duties under the Delaware Contractor Registration Act while ensuring procedural due process to employers and other parties.

1.9 Amendment of regulations. The Administrator may rescind, amend or expand these regulations from time to time as necessary to comply with the purpose of the Delaware Contractor Registration Act and such new regulations shall be submitted to the Registrar of Regulations' office in accordance with the provisions of 29 Del.C. §10161(b).

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-2.0 Registration of Contractors

2.1 No contractor shall be registered in accordance with the Delaware Contractor Registration Act until a completed application has been submitted. A completed application shall include, at a minimum, the following documents:

2.1.1 The name, principal business address, telephone number, fax number and email address of the contractor. Should the contractor not possess a fax number or email address, the contractor shall simply state, "not applicable".

2.1.2 The type of business entity- corporation, partnership, sole proprietorship, limited liability company, or whatever other form of business entity.

2.1.3 If the business is not headquartered within Delaware, the name and address of a custodian of records and agent for service of process within Delaware. This agent shall be authorized to receive subpoenas and accept service of litigation documents.

2.1.4 The name of any person, the date and nature of any violation, conviction or judgment, and all additional information requested by the Department if the contractor or a person holding a financial interest in the contractor's business has done any of the following within the preceding 2 years:

2.1.4.1 Held a financial interest in a licensed entity that was cited by the Delaware Department of Labor for a violation of any labor law.

2.1.4.2 Been convicted of home improvement fraud under 11 Del.C. §916 or new home construction fraud under 11 Del.C. §917.

2.1.4.3 Been found to have engaged in an unlawful practice under 6 Del.C. §2513.

2.1.5 The Federal Employer Identification Number, the State Taxpayer Identification Number, the Individual Tax Identification Number, or any other tax identification number which the contractor uses in completing tax forms.

2.1.6 Proof of Delaware workers' compensation insurance or proof that under 19 Del.C. Ch. 23, of the Delaware Code the contractor is not required to carry valid Delaware workers' compensation insurance.

2.1.7 Proof of a State business license.

2.1.8 A safety plan that is compliant with the requirements established by the Occupational Safety and Health Administration, or satisfactory proof that no such safety plan is required. If a contractor is actively working with Delaware's Office of Safety & Health Consultation or another private health and safety consultant on the creation of such a safety plan, then the Department will take that into consideration.

2.2 A contractor seeking renewal of their license shall notify the Department of any changes in their status at the time of renewal.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-3.0 Fees

3.1 A contractor who has or seeks a State contract under 29 Del.C. Ch. 69, Subch. IV must pay an initial annual non-refundable registration fee of $300.00 to the Department with the application prior to performing construction services or maintenance in Delaware.

3.1.1 The non-refundable registration fee for the second annual registration is $300.00.

3.1.2 Upon successful completion of 2 consecutive years of registration, a contractor may renew their current registration for a 2-year period and pay a non-refundable registration fee of $500.00. The Department may only grant a 2-year registration if the contractor has not violated the Delaware Contractor Registry Act or any other labor laws during the registration period that is expiring and submits a renewal application no less than 30 days before the expiration date of their current registration.

3.1.3 A contractor who is performing public work on July 1, 2021, shall submit the registration application form and fee to the Department no later than August 1, 2021.

3.2 A contractor who does not have or seek a State contract under 29 Del.C. Ch. 69, Subch. IV of the Delaware Code must pay an initial annual non-refundable registration fee of $200.00 to the Department with the application prior to performing construction services or maintenance in Delaware.

3.2.1 The non-refundable registration fee for the second annual registration is $200.00.

3.2.2 Upon successful completion of 2 consecutive years of registration, a contractor may renew their current registration for a 2-year period and pay a non-refundable registration fee of $300.00. The Department may only grant a 2-year registration if the contractor has not violated the Delaware Contractor Registry Act or any other labor laws during the registration period that is expiring and submits a renewal application no less than 30 days before the expiration date of their current registration.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-4.0 Issuance and Term of a Certificate of Registration

4.1 Except as otherwise required by the Delaware Contractor Registration Act, upon receipt of a completed, accurate application and the application fee, the Department shall issue a certificate of registration to the contractor as long as it satisfies all of the requirements of the Delaware Contractor Registration Act. A certificate of registration is valid as follows:

4.1.1 For 1 year from the date of registration; or

4.1.2 For 2 years from the date of registration, if the contractor successfully completes 2 years of registration and then reapplies no less than 30 days before the expiration date of their current registration.

4.2 A certificate of registration must be renewed no less than 30 days before the expiration date of the certificate. The Department may deny the certificate of registration if the contractor has violated the Delaware Contractor Registration Act or any law referenced under 19 Del.C. §3605(b)(4) during the registration period that is expiring.

4.3 A certificate of registration is not transferable to a successor entity or other entity or person.

4.4 A registered contractor who allows the certificate of registration to expire before applying to renew the certificate must subsequently apply for a registration certificate as if for the first time.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-5.0 Rejection

5.1 The Department shall reject an application that is incomplete or contains inaccurate information.

5.2 The Department may reject a submitted incomplete application after 15 days has passed if the contractor fails to provide the required information under 19 Del.C. §3605 to the Department.

5.3 If a contractor knowingly supplies incomplete or inaccurate information to the Department, then all of the following apply:

5.3.1 The application for registration must be rejected;

5.3.2 The contractor may not apply for registration until 1 year from the date of the notice of disqualification;

5.3.3 The contractor is subject to other applicable penalties, including liability under 6 Del.C. Ch. 12.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-6.0 Denial, Suspension or Revocation of Certificate of Registration

6.1 The Department may deny, suspend, or revoke a certificate of registration if the contractor or any officer, partner, director, stockholder, or agent of the contractor does any of the following:

6.1.1 Knowingly fails to comply with any requirement of the Delaware Contractor Registration Act;

6.1.2 Willfully makes a misstatement or omits a material fact in an application for or renewal of a certificate of registration;

6.1.3 Fails to provide all information, including records, forms, or documents, requested by the Department under the Delaware Contractor Registration Act;

6.1.4 Performs work without full compliance with the Delaware Contractor Registration Act;

6.1.5 Contracts with or uses a subcontractor who is not registered under the Delaware Contractor Registration Act in the completion of a public works project

6.1.6 Fails to cooperate with, or interferes with, an investigation by the Department, including failure to comply with investigative subpoenas;

6.1.7 Violates a criminal or civil law or regulation related to the ability of the contractor to comply with the labor laws of Delaware.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-7.0 Surety Bonds

7.1 The Department may require as a condition of initial or continued registration that a contractor who has violated either the Delaware Contractor Registration Act or the Prevailing Wage Law must provide a surety bond payable to the Department.

7.2 The Department shall require a surety bond if there is a pending investigation or litigation of a violation of a State or federal labor law alleged against the contractor which the Secretary finds would constitute a knowing violation of the Delaware Contractor Registration Act.

7.3 The surety bond must be in the amount and form that the Secretary deems necessary for the protection of the contractor's workers, but must not exceed $10,000 per worker.

7.4 The surety bond must be released upon a final adjudication of the investigation or litigation under subsection 7.2 if the final adjudication is in favor of the contractor.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-8.0 Investigations

8.1 Timing of investigations.

8.1.1 The Department shall promptly initiate an investigation into alleged violations of the Delaware Contractor Registration Act when:

8.1.1.1 The Department receives a complaint; or

8.1.1.2 The Department, on its own motion, determines to initiate an investigation.

8.1.2 The Department shall complete its investigation as promptly as possible.

8.2 The Department shall coordinate with other state agencies where appropriate. All Divisions and units of the Department shall cooperate with any investigation.

8.3 Investigatory procedures.

8.3.1 All investigatory powers granted by 19 Del.C. §108 shall be available to the Department. In its discretion, the Department may conduct investigations using, among other things, written requests for information, investigatory conferences, subpoenas, on-site visits, interviews, and depositions as provided by these regulations.

8.3.2 In connection with an investigation, the Department may require the submission of information relating to:

8.3.2.1 The employer's books and records;

8.3.2.2 The employment records of employees;

8.3.2.3 The employer's accounts and payroll records;

8.3.2.4 The employer's procedures for hiring and selecting employees; and

8.3.2.5 Such other information as the Department determines to be reasonably necessary to carry out the provisions of the Delaware Contractor Registration Act.

8.4 Requests for Information.

8.4.1 The Department may serve requests by certified mail for information to assist the Department in its investigation. Unless otherwise specified in a request for information, the response shall be due to the Department within 15 days from the date of the request.

8.4.2 If an employer fails to provide all information, including records, forms, or documents, requested by the Department under the Delaware Contractor Registration Act the Department may, deny, suspend, or revoke the employer's registration until the information is received by the Department, under 19 Del.C. §3607.

8.5 On-Site Visits.

8.5.1 The Department may conduct on-site visits to assist in the investigatory process for the purpose of gathering evidence, interviewing witnesses, observing an employer's place of business or work site, and reviewing documents.

8.5.2 The Department is not required to provide the employer with any notice prior to its on-site visit.

8.5.3 The employer shall grant access to its premises, documents, and employees during the Department's on-site visit.

8.6 Subpoenas.

8.6.1 The Administrator may issue a subpoenas to assist the investigatory process. The Administrator shall issue a subpoena in the name of the Department, and the subpoena shall direct the person designated to personally appear and bring any books, records, documents and any other evidence that relates to any violation under investigation, or, in lieu of personal appearance, to produce any books, records, documents and any other evidence which relates to any violation under investigation.

8.6.2 A subpoena shall state the time and place where the person designated is directed to appear.

8.6.3 A subpoena shall be served either by personal service by any person 18 or more years of age by delivery of a copy thereof to the person named therein, by overnight delivery by commercial courier, or by registered or certified mail, return receipt requested.

8.7 Depositions.

8.7.1 The Department may take depositions of witnesses under oath as part of any investigation when, in the discretion of the Administrator, such depositions will aid the investigatory process.

8.7.2 Any deponent shall have the opportunity to be represented by licensed Delaware counsel at their deposition and shall be notified of that right by the Department.

8.8 Enforcement of subpoenas. If any person fails to comply with a subpoena issued by the Department, he shall be subject to the appropriate enforcement provisions of the Delaware Contractor Registration Act.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-9.0 Issuance of Findings

9.1 Following an investigation in which the Department makes an initial determination that a contractor or applicant has violated one or more provisions of the Delaware Contractor Registration Act, the Department may do one or more of the following:

9.1.1 Deny, suspend or revoke a certificate of registration;

9.1.2 Require the posting of a surety bond;

9.1.3 Impose an administrative penalty.

9.2 The Department shall notify the contractor in writing of its intention to take an action described in subsection 9.1 of this regulation. This notice shall comply with the requirements of 19 Del.C. §3608(b). The notice shall be sent by certified mail or, where possible, through secure email with a return receipt proving it was viewed by the recipient.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-10.0 Request for Appeal

10.1 A request for a hearing must be made in writing, addressed to the Secretary, and made within 10 business days from the receipt of the notice of the Department's intention to take one or more of the actions described in subsection 9.1 of this regulation.

10.2 The request for a hearing should be addressed as follows: Delaware Secretary of Labor, c/o LLEO Construction Industry Administrator, 4425 North Market Street, Wilmington Delaware 19802.

10.3 The Office of Contractor Registration shall review all requests for hearings under subsection 10.1 of this regulation to determine if the dispute can be resolved at an informal settlement conference as provided under Section 11.0 of this regulation. If the appellant refuses to participate in a settlement conference or a settlement is not reached at the settlement conference, the Office of Contractor Registration shall forward the hearing request to the Secretary to schedule a hearing.

10.4 If a hearing is not requested as required under subsection 10.1 of this regulation, the initial written determination of the Department is final.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-11.0 Informal Settlement Conference

11.1 The Office of Contractor Registration shall review all requests for a hearing submitted under 19 Del.C. §3608.

11.2 The Office of Contractor Registration will document the date of receipt regarding the request for a hearing. Any hearing request received within 10 business days from the date of receipt of the Department notice required under 19 Del.C. §3608(b) shall secure all of the contractor's rights to the appeal process as outline in the Delaware Contractor Registration Act.

11.3 The Office of Contractor Registration shall determine if the requested appeal may be able to be resolved in an informal settlement conference.

11.4 If the Office of Contractor Registration agrees to engage in an informal settlement conference, it will take the following action:

11.4.1 The Office of Contractor Registration will contact the contractor to offer to participate in an informal settlement conference.

11.4.2 Prior to such a conference, the Office of Contractor Registration will provide written notice (Notice of Informal Settlement Conference) to the contractor that the Department has received the timely request for an appeal. The notice must state that the contractor's rights to the appeal process will remain unless a settlement is reached. The notice will inform the contractor that participation in the informal settlement conference is voluntary and not required under the conditions of the appeal process.

11.4.3 If the informal settlement conference does not result in an agreement, or there is no longer participation, the Office of Contractor Registration will forward the request to the Secretary of the Department of Labor to schedule a hearing.

11.5 If the Office of Contractor Registration determines the dispute cannot be resolved through an informal settlement conference or the contractor does not agree to engage, then the Office of Contractor Registration shall forward the hearing request to the Secretary of the Department of Labor to schedule a hearing.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-12.0 Appeal Hearing

12.1 The Secretary of the Department of Labor may serve as hearing officer in the hearing, or may appoint a designee to serve as hearing officer. The hearing officer will rule upon all motions and questions relating to the administrative hearing.

12.2 The hearing officer is empowered to:

12.2.1 Issue subpoenas for witnesses and other sources of evidence, either on the agency's initiative or at the request of any party;

12.2.2 Administer oaths to witnesses;

12.2.3 Exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence;

12.2.4 Limit unduly repetitive proof, rebuttal and cross-examination; and

12.2.5 Cause interrogatories to issue and depositions to be taken.

12.3 Status Conference and Discovery

12.3.1 At least two weeks before the scheduled administrative hearing, counsel (or the parties themselves, if pro se) shall participate in a scheduled status conference with the hearing officer.

12.3.2 Status conferences may be in person or by telephone.

12.3.3 The purposes of this conference will be to resolve any outstanding scheduling matters; to simplify factual and legal issues by stipulation; to resolve any discovery disputes or other preliminary or procedural matters; to pre-mark for identification and admission into evidence all stipulated exhibits; and to afford the parties the opportunity to discuss the admissibility or exclusion of any outstanding evidentiary issues.

12.3.4 The hearing officer will permit the parties to argue their positions and may issue a ruling either during the conference or by subsequent written decision.

12.3.5 The status conference may be waived by the written stipulation of the opposing parties. In the absence of such a stipulation, failure to participate in the status conference may result in a finding contrary to the party which fails to participate in the status conference.

12.3.6 Prior to the administrative hearing, or at any time when directed by the hearing officer, the Department of Labor will make available to the employer all documents and records relevant to its decision, unless prohibited by statute or the confidentiality rights of others, or the documents in question are protected by attorney-client or other evidentiary privilege.

12.3.7 Personal identifying information and confidential sources shall be redacted from any such disclosure.

12.3.8 The hearing officer may at any time also direct the employer to make available to the Department any appropriate documents and records requested by the Department, and any evidence the employer intends to introduce during the administrative hearing.

12.3.9 Failure to comply with this directive by the Department may result in dismissal of the alleged violation upon application of the employer to the hearing officer, who shall give the Department the opportunity to respond prior to reaching a decision upon the dismissal.

12.3.10 Failure to comply with this directive by the contractor may result in the dismissal of their appeal, and the hearing officer may then impose the penalties sought in subsection 8.1 of this regulation.

12.4 The hearing officer shall rule on requests for changing the timing, manner, or location of the hearing. Such requests shall be made to the hearing officer within a reasonable time prior to the hearing. The opposing party shall have the right to oppose such a request. In ruling on such a request, the hearing officer shall include consideration of the sufficiency of the grounds for the request, the length of time appropriate for a continuance, and the degree of prejudice, if any, to the party opposing the request.

12.5 At the administrative hearing, any party or their representative shall have the opportunity to produce witnesses and cross-examine adverse witnesses; to express all pertinent facts and circumstances through evidence, oral or written; to advance any arguments without undue interference; and to question or refute any testimony or evidence.

12.6 The burden of proving facts alleged as the basis for its decision shall be on the Department by a preponderance of the evidence. The burden of proof regarding any affirmative defenses shall be on the employer by a preponderance of the evidence.

12.7 The rules of evidence applied in civil cases by the courts of the State of Delaware shall not be strictly followed. The hearing officer may allow evidence not admissible under these rules of evidence where, in the hearing officer’s judgment, application of the exclusionary rule would result in unnecessary hardship and the evidence offered is of a kind commonly relied upon by reasonably prudent persons in the conduct of their affairs. Hearsay may be admissible in administrative hearings, but may not constitute the sole basis for the hearing officer's determination upon the factual issue addressed by the hearsay evidence.

12.8 The Secretary shall exercise reasonable discretion in deciding whether to deny, suspend or revoke a certificate of registration.

12.9 The Secretary may not revoke or suspend a certificate of registration for longer than 5 years. The Secretary shall consider the following criteria to determine the length of time that a certificate of registration is denied, revoked or suspended:

12.9.1 The contractor's prior record of violations of any civil or criminal law related to the fitness of the contractor to bid on or engage in construction services or maintenance, including, but not limited to, violations of the Delaware Contractor Registration Act and Delaware's Workplace Fraud Act Delaware's Prevailing Wage Law or other associated Delaware labor laws.

12.9.2 If the contractor should reasonably have known that a subcontractor to a contract did not have a certificate of registration, had a lapsed certificate of registration, or had a certificate of registration revoked or suspended.

12.9.3 The total number of unregistered subcontractors at a work site and the size and scope of the project on which the unregistered subcontractor worked.

12.9.4 If a contractor in contract with an unregistered subcontractor obeyed the Department's directive to remove the unregistered subcontractor from the work site to cure the violation of the Delaware Contractor Registration Act.

12.10 Administrative Dismissal

12.10.1 The hearing officer may in his or her discretion administratively dismiss a complaint for any of the following reasons:

12.10.1.1 Lack of jurisdiction;

12.10.1.2 The determination on its face fails to state a violation of the Delaware Contractor Registration Act.

12.10.2 Except for the reasons provided in subsection 12.10.1, the hearing officer may not administratively dismiss a complaint without the consent of the Office of Contractor Registration.

12.10.3 Prior to administratively dismissing a complaint, the hearing officer shall notify the Office of Contractor Registration of the reason for the proposed dismissal and shall offer the Office of Contractor Registration the opportunity to respond. If the basis for the dismissal is that the determination letter on its face fails to state a violation of the Delaware Contractor Registration Act, the Office of Contractor Registration shall be given 15 days to draft and produce a revised determination letter which adequately states a violation.

12.11 The hearing officer shall make a final determination as expeditiously as possible following the conclusion of the evidentiary hearing. Absent extenuating circumstances which shall be explained to the parties in writing, the final determination shall be issued within 30 days after the conclusion of the evidentiary hearing. The final determination shall otherwise comply with the requirements of 29 Del.C. Ch. 101, Subch. III.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-13.0 Judicial Review

13.1 A contractor may seek judicial review of the final determination of the hearing officer by commencing an action in Superior Court as described in the Delaware Contractor Registration Act.

13.2 When a determination by the Department to suspend or revoke a contractor's certificate of registration is final, the holder of the certificate shall surrender it to the Department within 20 days of the date of later of the date of the notice under 19 Del.C. §3608(b) or 19 Del.C. §3608(d) by sending the certificate of registration to the Secretary by certified mail.

13.3 If a contractor seeks judicial review of a final determination from the Secretary as provided in subsection 13.1, the 20-day period to return or surrender the contractor’s certificate of registration pursuant to subsection 13.2, is tolled until the matter has been fully determined on appeal to the appropriate court.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-14.0 Enforceability of settlement agreements

14.1 A settlement agreement reached during an investigation or informal settlement conference shall be set forth in writing and signed by the parties.

14.2 Allegations of breach of a settlement agreement shall be brought to the attention of the Administrator or hearing officer, depending upon which is responsible for enforcing settlement agreements in the matter at the time of the alleged breach. The Administrator or hearing officer shall review and investigate the allegations of breach of a settlement agreement to determine whether a breach has occurred.

14.3 The Administrator or hearing officer shall issue written findings to the parties with regard to the allegation of breach of a settlement agreement.

14.4 The Administrator or hearing officer in his discretion will determine whether to forward allegations of breach of the settlement agreement to the Attorney General for review and enforcement.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-15.0 Confidentiality of Department's Files

15.1 Information obtained from contractors and applicants is not public information under 29 Del.C. Ch. 100.

15.2 The Department's investigatory records are confidential and exempt from public access under 29 Del.C. Ch. 100.

History

25 DE Reg. 288 (09/01/21)

19 Del. Admin. Code § 1329-16.0 Retention of Investigatory Files

The Department shall retain investigatory files for a minimum of three years after the end of the administrative process.

History

25 DE Reg. 288 (09/01/21)

1340 Office of Workers' Compensation

1341 Workers’ Compensation Regulations

19 Del. Admin. Code § 1341-1.0 Purpose and Scope

1.1 Section 2322B, Chapter 23, Title 19, Delaware Code authorizes and directs the Department of Labor to adopt a Health Care Payment System by regulation after promulgation by the Workers’ Compensation Oversight Panel.

1.2 Section 2322B, Chapter 23, Title 19, Delaware Code, authorizes and directs the Workers’ Compensation Oversight Panel to adopt and recommend a coordinated set of instructions and guidelines to accompany the health care payment system, to the Department for adoption by regulation.

1.3 Section 2322B(3), Chapter 23, Title 19, Delaware Code establishes the fee schedule framework for hospitals, ambulatory surgery centers, and professional services based upon Resource Based Relative Value Scale (RBRVS), Medical Severity Diagnosis Related Group (MS-DRG), Ambulatory Payment Classification (APC) or other equivalent scale used by the Centers for Medicare and Medicaid Services, and Delaware geographic adjustments.

1.3.1 The Delaware workers’ compensation health care payment system (HCPS) has moved towards an RBRVS, MS-DRG, and APC based system. While the Workers’ Compensation Oversight Panel (“Panel”) used these tools to form the foundation of the HCPS, Delaware has not adopted by default Medicare rules for workers’ compensation. The Panel developed these Delaware specific rules and regulations to govern the HCPS. The HCPS does not support health care service or payment denials based on Medicare rules. The Delaware workers’ compensation health care practice guidelines remain in effect and care is presumed compensable when followed. These regulations do not define compensable care, but rather a maximum allowable reimbursement (MAR).

1.3.2 The Delaware workers’ compensation regulations supersede when a conflict exists with the Centers for Medicare and Medicaid (CMS) rules.

1.4 Section 2322B(5), Chapter 23, Title 19, Delaware Code authorizes the Workers’ Compensation Oversight Panel to establish the amount of reimbursement for a procedure, treatment or service to be a percentage reduction from 85% of the actual charge, if a specific fee is not set forth in the Fee Schedule Amounts. Facility billed codes identified as Add-On and listed as percent of charge shall not be reimbursed more than the reimbursement for the primary code billed by the Facility.

1.5 Section 2322B(9), Chapter 23, Title 19, Delaware Code authorizes and directs the Workers’ Compensation Oversight Panel to adopt, recommend, and maintain a formulary and fee methodology for pharmacy services, prescription drugs, and other pharmaceuticals.

1.6 The fees to be established in Sections 2322B shall be promulgated and recommended by the Workers’ Compensation Oversight Panel to the Department before the effective date of the regulation.

1.7 Section 2322D, Chapter 23, Title 19, Delaware Code authorizes and directs the Department to adopt by regulation complete rules and regulations relating to Health Care Provider Certification approved and proposed by the Workers’ Compensation Oversight Panel.

1.8 Section 2322E, Chapter 23, Title 19, Delaware Code, authorizes and directs the Workers’ Compensation Oversight Panel to approve, propose, and recommend to the Department the adoption by regulation of consistent forms for the health care providers and employers ("Forms").

History

11 DE Reg. 920 (01/01/08)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1100 (06/01/16)
27 DE Reg. 614 (02/01/24)
13 DE Reg. 1558 (06/01/10)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
14 DE Reg. 1375 (06/01/11)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1761 (06/01/12)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1167 (02/01/12)
27 DE Reg. 614 (02/01/24)
11 DE Reg. 920 (01/01/08)
11 DE Reg. 1661 (06/01/08)
12 DE Reg. 67 (07/01/08)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 365 (09/01/11)
15 DE Reg. 1167 (02/01/12)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)

19 Del. Admin. Code § 1341-2.0 Definitions

The following words and terms, when used in this regulation, have the following meaning:

“Certification” means the certification pursuant to 19 Del.C. §2322D, required for a Health Care Provider to provide treatment to an employee, pursuant to Delaware’s Workers’ Compensation Statute.

“Certification of Health Care Providers in an Inpatient Hospital Setting." With regard to health care provider certification as required by 19 Del.C. §2322D, such certification applies to physicians, chiropractors, and physical therapists providing treatment to an injured worker during his or her period of inpatient hospitalization; all other personnel employed by a hospital providing treatment to an injured worker during his or her period of inpatient hospitalization are excluded from certification.

“CPT” means Current Procedural Terminology, copyright American Medical Association (AMA). CPT codes are also known as Healthcare Common Procedure Coding System (HCPCS) Level 1 and is the numeric medical coding system used in the HCPS for the professional services, as well as hospital outpatient, and ambulatory surgery centers fee schedules.

"Department" means the Department of Labor.

"Fee Schedule Amounts" mean the fees as set forth by the Health Care Payment System.

"Forms" means the standard health care provider and employer forms for the provision of health care services set forth in 19 Del.C. §2322E.

“Geozip” means the geographical area used to determine the “Delaware specific geographically adjusted factor” mandated in 19 Del.C. §2322B(a).

“HCPCS” means Healthcare Common Procedure Coding System. HCPCS level 1 consists of the American Medical Association’s Current Procedure Terminology (CPT. HCPCS level II codes are alphanumeric and primarily include non-physician services, items, and supplies not covered by the Level 1 (CPT) codes.

"Health Care Payment System" means the comprehensive fee schedule promulgated by the Workers’ Compensation Oversight Panel to establish medical payments for both professional and facility fees generated on workers' compensation claims.

“Health Care Provider Application for Certification” means the Department’s approved application form which Health Care Providers must submit to the Department so that pre-authorization of each health care procedure, office visit or health care service to be provided to the employee is not required.

“MAR” means maximum allowable reimbursement.

"Not Addressed" means when a code or service that is not present in the Delaware Fee Schedule. The code or service shall be reimbursed as a percent of charge per the applicable fee schedule.

"Not Covered" means that a fee is represented by $0.00 on the Delaware Fee Schedule. When a 0% is displayed in either the professional or technical component percentage of the professional fee schedule, the service is considered 100% of the other component. The component with the 0% is not reimbursed Percentage of Charge (POC).

“Utilization Review” means the utilization review program and associated procedures to guide utilization of health care treatments in workers’ compensation as set forth in Section 2322F(j), Chapter 23, Title 19, Delaware Code.

“Workers’ Compensation Oversight Panel” or “Panel” means the 24 members appointed or serving by virtue of position, pursuant to 19 Del.C. §2322A, to carry out the provisions of 19 Del.C. Ch. 23.

History

11 DE Reg. 920 (01/01/08)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1100 (06/01/16)
27 DE Reg. 614 (02/01/24)
13 DE Reg. 1558 (06/01/10)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
14 DE Reg. 1375 (06/01/11)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1761 (06/01/12)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1167 (02/01/12)
27 DE Reg. 614 (02/01/24)
11 DE Reg. 920 (01/01/08)
11 DE Reg. 1661 (06/01/08)
12 DE Reg. 67 (07/01/08)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 365 (09/01/11)
15 DE Reg. 1167 (02/01/12)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)

19 Del. Admin. Code § 1341-3.0 Health Care Provider Certification

3.1 Section 2322D(a), Chapter 23, Title 19, Delaware Code establishes the minimum certification requirement to be certified as a Health Care Provider:

3.1.1 With regard to the Certification of any hospital facility providing inpatient and/or outpatient services, the person completing and signing the Health Care Provider Application for Certification on behalf of the hospital shall have the authority to do so and must attest to and be responsible for the completion of all of the requirements set forth on the Health Care Provider Application for Certification.

3.1.2 Services provided by an emergency department of a hospital shall not be subject to the requirement of Certification.

3.1.3 The provisions of Section 3.0 of this regulation shall apply to all treatment of workers provided after the effective date of these rules and regulations regardless of the date of injury.

3.1.4 In accordance with the provisions of 19 Del.C. §2322D, certification is required for a health care provider to provide treatment to a worker, pursuant to Delaware's Workers' Compensation Statute, without the requirement that the health care provider first pre-authorize each health care procedure, office visit or health care service to be provided to the employee with the employer if self-insured, or the employer's insurance carrier. Pursuant to 19 Del.C. §2322B and F, for purposes of the Certification requirements of §2322D, "health care provider in an inpatient hospital setting” specifically includes physicians, chiropractors and physical therapists providing treatment to an injured worker during the worker's period of inpatient hospitalization; all other personnel employed by a hospital providing treatment to an injured worker during the worker's period of inpatient hospitalization are excluded from the Certification requirements of subsection 3.1.4 of this regulation. With regard to any hospital facility providing inpatient and/or outpatient services, to be Certified in accordance with the provisions of §2322D so that pre-authorization from the employer or insurance carrier for the employer is not required for each health care procedure, office visit or health care service provided to an injured worker, the person completing and signing the Health Care Provider Application for Certification on behalf of the hospital shall have the authority to do so and must attest to and be responsible for the completion of all of the requirements set forth on such Application. Services provided by an emergency department of a hospital shall not be subject to the requirement of Certification. The provisions of §2322D shall apply to all treatments to workers provided after the effective date of the rule/regulation provided by subsection 3.1.4 of this regulation and regardless of the date of injury. A health care provider shall be certified only upon meeting the following minimum certification requirements:

3.1.4.1 Have a current license to practice, as applicable;

3.1.4.2 Meet other general certification requirements for the specific provider type;

3.1.4.3 Possess a current and valid Drug Enforcement Agency ("DEA") registration, unless not required by the provider's discipline and scope of practice;

3.1.4.4 Have no previous involuntary termination from participation in Medicare, Medicaid or the Delaware workers' compensation system. Any such involuntary termination shall be considered to be inconsistent with certification;

3.1.4.5 Have no felony convictions in any jurisdiction, under a federal-controlled substance act or for an act involving dishonesty, fraud or misrepresentation. A felony conviction in any jurisdiction under a federal-controlled substance act or for an act involving dishonesty, fraud or misrepresentation shall be considered to be inconsistent with certification;

3.1.4.6 Provide proof of adequate, current professional malpractice and liability insurance.

3.1.5 In addition to the above, the health care provider to be certified must agree to the terms and conditions set forth on the Health Care Provider Application for Certification, as follows:

3.1.5.1 Comply with Delaware workers' compensation laws and rules;

3.1.5.2 Maintain acceptable malpractice coverage;

3.1.5.3 Complete state-approved continuing education courses in workers' compensation every 2 years from the last date the health care provider renewed his or her Delaware professional license. Out of state health care providers, who are not licensed in Delaware, must complete State-approved continuing education courses in workers' compensation every 2 years from the date of the out of state provider's initial certification. A listing of continuing education courses in workers' compensation care approved by the State of Delaware, Department of Labor, Office of Workers' Compensation, will be posted on the Office of Workers' Compensation website. To maintain certification, the health care provider must provide written notification to the Office of Workers' Compensation of compliance with the continuing education course requirement noted above, setting forth the name of the course completed and the date of completion, in accordance with the above;

3.1.5.4 Practice in a best-practices environment, complying with practice guidelines and Utilization Review Accreditation Council ("URAC") utilization review determinations;

3.1.5.5 Agree to bill only for services and items performed or provided, and medically necessary, cost-effective and related to the claim or allowed condition;

3.1.5.6 Agree to inform an employee of his or her liability for payment of non-covered services prior to delivery;

3.1.5.7 Accept reimbursement for and not unbundle charges into separate procedure codes when a single procedure code is more appropriate;

3.1.5.8 Agree not to balance bill any employee or employer. Employees shall not be required to contribute a co-payment or meet any deductibles;

3.1.5.9 Agree to have knowledge of all statements authorized under the certified health care provider's signature and to be responsible for the content of all bills submitted pursuant to the provisions of 19 Del.C. §§2322B, C, E, F;

3.1.5.10 Agree to provide written notification to the Department of Labor, Office of Workers' Compensation, State of Delaware, of any relevant changes to the requirements set forth in the Certification Form within 30 days of the health care provider's knowledge or receipt of notice of any and all such changes.

3.1.6 Notwithstanding the provisions of §2322D of Chapter 23, Title 19, Delaware Code, any health care provider may provide services during 1 office visit, or other single instance of treatment, without first having obtained prior authorization from the employer if self-insured, or the employer’s insurance carrier, and receive reimbursement for reasonable and necessary services directly related to the employee’s injury or condition at the health care provider’s usual and customary fee, or the maximum allowable fee pursuant to fee schedule adopted pursuant to Section 2322B of Chapter 23, Title 19, Delaware Code whichever is less.

3.1.7 The allowance of reimbursement for the employee’s first contact with any health care provider for treatment of the injury as described in subsection 3.1.4 is further limited to instances when the health care provider believes in good faith, that the injury or occupational disease was suffered in the course of the employee’s employment.

3.1.8 The provisions of §2322D of Title 19, Delaware Code, shall apply to all treatments to injured employees provided after the effective date of this subsection, and regardless of the date of injury.

3.2 Completed Certification should be mailed to:

State of Delaware Department of Labor

Office of Workers’ Compensation

4425 N. Market Street

Wilmington, DE 19802

3.3 Instructions and provisions for completing the Certification Form online will be published on the Office of Workers’ Compensation website when available.

History

11 DE Reg. 920 (01/01/08)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1100 (06/01/16)
27 DE Reg. 614 (02/01/24)
13 DE Reg. 1558 (06/01/10)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
14 DE Reg. 1375 (06/01/11)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1761 (06/01/12)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1167 (02/01/12)
27 DE Reg. 614 (02/01/24)
11 DE Reg. 920 (01/01/08)
11 DE Reg. 1661 (06/01/08)
12 DE Reg. 67 (07/01/08)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 365 (09/01/11)
15 DE Reg. 1167 (02/01/12)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)

19 Del. Admin. Code § 1341-4.0 Workers' Compensation Health Care Payment Rates for Physicians, Other Qualified Health Care Professionals, Hospitals and Hospital Outpatient Facilities, as well as Ambulatory Surgery Centers (the "Fee Schedule"). Instructions and Guidelines

4.1 Introduction and Purpose

4.1.1 The intent of the General Assembly in authorizing a health care payment system is to reduce overall medical expenditures for the treatment of workers’ compensation related injuries by 33% by January 31, 2017, and to reduce said expenditures by 20% by January 31, 2015.

4.1.2 For purposes of the Workers' Compensation Act, the Delaware specific geographically adjusted factor means an area defined by reference to United States Zip Codes. Delaware shall consist of 1 “197 geozip” (comprised of all areas within the State where the address as a Zip Code beginning with the three digits 197 or 198) and 1 “199 geozip” (comprised of all areas within the State where the address has a Zip Code beginning with the three digits 199). If a geozip does not have the necessary number of charges and fees to calculate a valid geographically adjusted factor for a specific procedure, treatment or service, the Workers’ Compensation Oversight Panel may in its discretion combine data from Delaware’s 2 geozips for a specific procedure, treatment, or service, in order to determine a Delaware conversion factor.

4.1.3 This regulation, 19 DE Admin. Code 1341, is intended to assist with fee schedule application, and to ensure correct billing and reimbursement on workers' compensation medical claims. This document is NOT intended, and should not be construed, as a utilization review guide or practice manual.

4.1.4 The physician, as well as hospital outpatient and ambulatory surgery center fee schedules include fee amounts for specific medical services and procedures as identified using the following:

4.1.4.1 Level 1 HCPCS (CPT) numeric identifying codes and modifiers for reporting medical services and procedures as established by the current year of the Current Procedural Terminology (CPT), copyright American Medical Association (AMA). Any use or interpretation of CPT descriptions not specifically described herein shall be based on CPT.

4.1.4.2 Level 2 HCPCS alphanumeric codes primarily representing items and supplies, which are not covered by CPT codes (Level 1 HCPCS).

4.1.5 The inpatient hospital fee schedule includes fee amounts for specific groupings of medical services and procedures as identified using the Medical Severity Diagnosis Related Group (MS-DRG) used by the Centers for Medicare and Medicaid Services.

4.2 Format of the Fee Schedule.This fee schedule represents the maximum amount of reimbursement providers may receive for medical or surgical services for the treatment of work-related injuries and illnesses covered under the workers' compensation laws of the State of Delaware.

4.2.1 The maximum allowable reimbursement for individual reimbursement codes is generally separable into 11 distinct sections – Evaluation and Management (E&M); Anesthesia; Surgery; Radiology; Pathology and Laboratory; General Medicine; Physical Therapy; Hospital Outpatient; Ambulatory Surgery Center; Inpatient Hospital; and HCPCS – based on the category or type of service rendered. Each category of service has separate instructions for the application of ground rules and modifier adjustments. For each procedure, the fee schedule table includes the following details (if applicable):

4.2.1.1 Year;

4.2.1.2 Category;

4.2.1.3 Geozip;

4.2.1.4 Code or Group – 5 digit CPT, HCPCS, or MS-DRG;

4.2.1.5 Modifier;

4.2.1.6 Maximum allowable reimbursement (MAR) - professional non-facility;

4.2.1.7 Maximum allowable reimbursement (MAR) - professional facility;

4.2.1.8 Follow-up days in FUD column;

4.2.1.9 Professional Component (modifier 26); and

4.2.1.10 Technical Component (modifier TC).

4.2.2 The total maximum allowable reimbursement includes the professional component for a procedure and the technical component. Under no circumstances shall the maximum allowable reimbursement for the professional fee schedule be more than the value of the technical component and the professional component combined for a procedure.

4.2.3 For anesthesia fee amounts, anesthesia services provided to employees pursuant to this chapter shall be paid, pursuant to subsection 4.20 of this regulation.

4.2.4 General Medical Services Categories CPT Codes

Evaluation & Management

99091, 99202–99499

Anesthesia

00100–01999, 99100–99140

Surgery

10004–69990

Radiology

70010–79999

Pathology & Laboratory

80047-89398

General Medicine

90281–96999, 97802–97804, 98960–99082, 99151-99199, 99500-99607

Physical Medicine

97010–97799, 97810–98943

HCPCS

A0021-V5364

4.2.4.1 Within each section, you will find definitions and medical terms that explain services provided. Also, in certain sections there is an index of procedures by CPT code identifiers. Use each specific section in addition to general ground rules for clarification of terms and services.

4.2.4.2 The fee schedule is designed to be an accurate and authoritative source of information about medical coding and reimbursement. Every reasonable effort has been made to verify its accuracy and all information is believed reliable at the time of publication. Absolute accuracy and completeness, however, is neither intended nor guaranteed. The rules and guidelines described herein cannot specifically refer to every payment contingency. Fees for health care services or treatment not covered in the HCPS shall be paid at a percentage reduction from 85% of the actual charge.

4.2.5 Reference Materials. The health care payment system and fee schedule is in accordance with the following documents, including codes, guidelines and modifiers:

4.2.5.1 Current Procedural Terminology, copyright, American Medical Association, 515 N. State St., Chicago, IL 60610, Chicago, current year;

4.2.5.2 HCPCS Level II, U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, 7500 Security Blvd., Baltimore, MD 21244, Baltimore, current year;

4.2.5.3 National Correct Coding Policy Manual in Comprehensive Code Sequence for Part B Medicare Carriers, U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, 7500 Security Blvd., Baltimore, MD 21244, Baltimore, current year;

4.2.5.4 Medical Severity Diagnosis-Related Group (MS-DRG) classification system, Centers for Medicare and Medicaid Services (CMS), Federal Register, Vol. 70, No. 155, current year; and

4.2.5.5 The follow up days for post-operative care that have been adopted by the Delaware Office of Workers’ Compensation for their Fee Schedule and Guidelines have been established by reference to CMS (Centers for Medicare and Medicaid Services), current year.

4.3 HCPCS (Healthcare Common Procedure Coding System). The health care payment system requires that services be reported with the Healthcare Common Procedural Coding System Level 2 ("HCPCS Level 2"), HCPCS Level 1, also known as CPT (Current Procedural Terminology), or CDT (Current Dental Terminology) codes that most comprehensively describe the services performed. Proprietary bundling edits more restrictive than the current National Correct Coding Policy Manual in Comprehensive Code Sequence for Part B Medicare Carriers, U.S. Department of Health and Human Services, Centers for Medicare and Medicare Services, 7500 Security Boulevard, Baltimore, Maryland, 21244, shall be prohibited.

4.4 Professional Services/CPT Code Set

4.4.1 Unless otherwise specified herein, the payment system for professional services shall conform to the Current Procedural Terminology ("CPT"), American Medical Association, 515 North State Street, Chicago, Illinois, 60610, current year.

4.4.2 The fee schedule refers to guides and descriptions in the CPT Code Set in establishing the correct classification for health care services.

4.4.3 For codes that are deleted and bundled, the remaining/new code will be adjusted to reflect the value of the previously unbundled/deleted codes, so the charge is revenue neutral. For example, if multiple procedures are bundled into a new code, the new code will include the total value of the previously segregated codes in the preceding year Fee Schedule. The Department of Labor will publish to its web site additional special instructions associated with the revenue neutral fee conversion, where applicable. Once revenue neutral fees are established, they will adjust with the annual CPI-U adjustment referenced in 19 Del.C. §2322(5).

4.5 Physician/Health Care Provider Services

4.5.1 The maximum allowable payment for health care treatment and procedures shall be the lesser of the health care provider's actual charges or the fee set in the health care payment system. If an employer or insurance carrier contracts with a provider for the purpose of providing services under the Act, the rate negotiated in such contract shall prevail.

4.5.2 The Workers’ Compensation Oversight Panel shall establish a fee schedule for all Delaware workers’ compensation funded procedures, treatment and services based on the Resource Based Relative Value Scale (“RBRVS”) or equivalent scale used by the Centers for Medicare and Medicaid Services. The RBRVS or other equivalent factor shall be multiplied by a Delaware specific geographically adjusted factor to ensure adequate participation by providers. The fee schedule shall result in a reduction of 20% in aggregate workers’ compensation medical expenses – inpatient hospital facility, outpatient hospital facility, ambulatory surgery center and other health care providers (professional services) – by the year beginning January 31, 2015, an additional reduction of 5% of workers’ compensation medical expenses by the year beginning January 31, 2016, and an additional reduction of 8% of workers’ compensation medical expenses by the year beginning January 31, 2017. Resulting in a total reduction of 33% of workers’ compensation medical expenses. The aggregate workers compensation medical expenses required by this paragraph shall be attained through reimbursement reductions of equal percentages among hospitals (inpatient and outpatient), ambulatory surgical centers, and other health care providers (professional services); therefore, by January 31, 2015, the fee schedule shall reflect a reduction of 20% in workers’ compensation medical expenses paid to hospitals (inpatient and outpatient), a reduction of 20% in workers compensation medical expenses paid to ambulatory surgical centers, and a reduction of 20% in workers compensation medical expenses paid to other health care providers (professional services). This formula shall also be used for the 5% reduction required by January 31, 2016 and the 8% reduction required by January 31, 2017. By January 31, 2017, no individual procedure in Delaware paid for through the workers’ compensation system (as identified by HCPCS level 1 or level 2 code) shall be reimbursed at a rate greater than 200% of that reimbursed by the federal Medicare system, provided that radiology services may be reimbursed at up to 250% of the federal Medicare reimbursement and surgery services may be reimbursed at up to 300% of the federal Medicare reimbursement.

4.5.3 To ensure that no individual procedure is more than 300% of Medicare for Surgery, 250% of Medicare for Radiology and 200% of Medicare for other professional services by January 2017 the following service area percent of Medicare for the other professional services will be used as guidelines to help obtain the 33% overall reduction: 200% of Medicare for Laboratory and Medicine procedures, 160% of Medicare for Physical Medicine procedures, 130% of Medicare for Evaluation and Management procedures and 100% of Medicare for HCPCS Level II codes. For the years 2015 (20% of 2014 expenses) and 2016 (additional 5% of 2014 expenses) the percent of Medicare by service area will be adjusted accordingly and in a similar ratio to obtain the yearly goals.

4.5.4 The Panel will review changes within RBRVS and CMS conversion factors throughout the transition years and may adjust or override accordingly for procedures that may increase or decrease due to CMS interpretation changes or CPT description changes.

4.5.5 Whenever the health care payment system does not set a specific fee for a procedure, treatment or service in the schedule, the amount of reimbursement shall be a percentage reduction from 85% of the actual charge.

4.5.6 The payment system will be adjusted yearly pursuant to 19 Del.C. §2322B(5).

4.6 Modifiers. Modifiers augment CPT codes to more accurately describe the circumstances of services provided. When applicable, the circumstances should be identified by a modifier code: a 2-digit number placed after the usual procedure code. If more than 1 modifier is needed, place modifier 99 after the procedure code to indicate that 2 or more modifiers will follow.

4.6.1 No reductions in payment will be made when the modifiers below are billed, unless otherwise specified in the regulations.

22 Increased Procedural Services: When the work required to provide a service is substantially greater than typically required, it may be identified by adding modifier 22 to the usual procedure code. Documentation must support the substantial additional work and the reason for the additional work (i.e., increased intensity, time, technical difficulty of procedure, severity of patient's condition, and physical and mental effort required). Note: This modifier should not be appended to an E/M service.

23 Unusual Anesthesia: Occasionally, a procedure, which usually requires either no anesthesia or local anesthesia, because of unusual circumstances must be done under general anesthesia. This circumstance may be reported by adding modifier 23 to the procedure code of the basic service.

24 Unrelated Evaluation and Management Service by the Same Physician or Other Qualified Health Care Professional During a Postoperative Period: The physician or other qualified health care professional may need to indicate that an E/M service was performed during a postoperative period for a reason unrelated to the original procedure. This circumstance may be reported by adding modifier 24 to the appropriate level of E/M service.

25 Significant, Separately Identifiable Evaluation and Management Service by the Same Physician or other qualified Health Care Professional on the Same Day of the Procedure or Other Service: It may be necessary to indicate that on the day a procedure or service identified by a CPT code was performed, the patient's condition required a significant, separately identifiable E/M service above and beyond the other service provided or beyond the usual preoperative and postoperative care associated with the procedure that was performed. A significant, separately identifiable E/M service is defined or substantiated by documentation that satisfies the relevant criteria for the respective E/M service to be reported (see Evaluation and Management Services Guidelines for instructions on determining level of E/M service). The E/M service may be prompted by the symptom or condition for which the procedure and/or service was provided. As such, different diagnoses are not required for reporting of the E/M services on the same date. This circumstance may be reported by adding modifier 25 to the appropriate level of E/M service. Note: This modifier is not used to report an E/M service that resulted in a decision to perform surgery. See modifier 57. For significant, separately identifiable non-E/M services, see modifier 59.

26 Professional Component: Certain procedures are a combination of a physician or other qualified health care professional component and a technical component. When the physician or other qualified health care professional component is reported separately, the service may be identified by adding modifier 26 to the usual procedure number.

27 Multiple Outpatient Hospital E/M Encounters on the Same Date: For hospital outpatient reporting purposes, utilization of hospital resources related to separate and distinct E/M encounters performed in multiple outpatient hospital settings on the same date may be reported by adding modifier 27 to each appropriate level outpatient and/or emergency department E/M code(s). This modifier provides a means of reporting circumstances involving evaluation and management services provided by physician(s) in more than 1 (multiple) outpatient hospital setting(s) (e.g., hospital emergency department, clinic). Note: This modifier is not to be used for physician reporting of multiple E/M services performed by the same physician on the same date. For physician reporting of all outpatient evaluation and management services provided by the same physician on the same date and performed in multiple outpatient setting(s) (e.g., hospital emergency department, clinic), see Evaluation and Management, Emergency Department, or Preventive Medicine Services codes.

32 Mandated Services: Services related to mandated consultation and/or related services (e.g., third party payer, governmental, legislative or regulatory requirement) may be identified by adding modifier 32 to the basic procedure.

47 Anesthesia by Surgeon: Regional or general anesthesia provided by the surgeon may be reported by adding modifier 47 to the basic service. (This does not include local anesthesia.) Note: Modifier 47 would not be used as a modifier for the anesthesia procedures.

50 Bilateral Procedure: Unless otherwise identified in the listings, bilateral procedures that are performed at the same session, should be identified by adding modifier 50 to the appropriate 5 digit code.

Note: This modifier should not be appended to designated "add-on" codes (see Appendix D of CPT).

State Note: There will be no reductions to the procedures billed with the modifier 50.

State Note: Procedure performed bilaterally are reported as 2-line items and modifier 50 is not appended. These codes are identified with CPT specific language at the code or subsection level. Modifiers RT and LT may be appended as appropriate.

51 Multiple Procedures: When multiple procedures, other than E/M services, Physical Medicine and Rehabilitation services or provision of supplies (e.g., vaccines), are performed at the same session by the same individual, the primary procedure or service may be reported as listed. The additional procedure(s) or service(s) may be identified by appending modifier 51 to the additional procedure or service code(s). Note: This modifier should not be appended to designated “add-on” codes (see Appendix D of CPT).

State Note: There will be no reductions to the procedures billed with the modifier 51.

52 Reduced Services: Under certain circumstances, a service or procedure is partially reduced or eliminated at the discretion of the physician or other qualified health care professional. Under these circumstances, the service provided can be identified by its usual procedure number and the addition of modifier 52 signifying that the service is reduced. This provides a means of reporting reduced services without disturbing the identification of the basic service. Note: For hospital outpatient reporting of a previously scheduled procedure/service that is partially reduced or canceled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifiers 73 and 74 (see modifiers approved for ASC hospital outpatient use of CPT).

53 Discontinued Procedure: Under certain circumstances, the physician or other qualified health care professional may elect to terminate a surgical or diagnostic procedure. Due to extenuating circumstances or those that threaten the well-being of the patient, it may be necessary to indicate that a surgical or diagnostic procedure was started but discontinued. This circumstance may be reported by adding modifier 53 to the code reported by the individual for the discontinued procedure. Note: This modifier is not used to report the elective cancellation of a procedure prior to the patient’s anesthesia induction and/or surgical preparation in the operating suite. For outpatient hospital/ambulatory surgery center (ASC) reporting of a previously scheduled procedure/service that is partially reduced or canceled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifiers 73 and 74 (see modifiers approved for ASC hospital outpatient use of CPT).

54 Surgical Care Only: When 1 physician or other qualified health care professional performs a surgical procedure and another provides preoperative and/or postoperative management, surgical services may be identified by adding modifier 54 to the usual procedure number.

55 Postoperative Management Only: When 1 physician or other qualified health care professional performed the postoperative management and another physician performed the surgical procedure, the postoperative component may be identified by adding modifier 55 to the usual procedure number.

56 Preoperative Management Only: When 1 physician or other qualified health care professional performed the preoperative care and evaluation and another physician performed the surgical procedure, the preoperative component may be identified by adding modifier 56 to the usual procedure number.

57 Decision for Surgery: An evaluation and management service that resulted in the initial decision to perform the surgery may be identified by adding modifier 57 to the appropriate level of E/M service.

58 Staged or Related Procedure or Service by the Same Physician or Other Qualified Health Care Professional During the Postoperative Period: It may be necessary to indicate that the performance of a procedure or service during the postoperative period was: (a) planned or anticipated (staged); (b) more extensive than the original procedure; or (c) for therapy following a surgical procedure. This circumstance maybe reported by adding modifier 58 to the staged or related procedure. Note: For treatment of a problem that requires a return to the operating or procedure room (e.g., unanticipated clinical condition), see modifier 78.

59 Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision/excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate, it should be used rather than modifier 59. Only if no more descriptive modifier is available, and the use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25.

State Note: There will be no reductions to procedures billed with modifier 59.

62 Two Surgeons: When 2 surgeons work together as primary surgeons performing distinct part(s) of a procedure, each surgeon should report his/her distinct operative work by adding modifier 62 to the procedure code and any associated add-on code(s) for that procedure as long as both surgeons continue to work together as primary surgeons. Each surgeon should report the co-surgery once using the same procedure code. If additional procedure(s) (including add-on procedure(s) are performed during the same surgical session, separate code(s) may also be reported with modifier 62 added. Note: If a co-surgeon acts as an assistant in the performance of additional procedure(s), other than those reported with the modifier 62, during the same surgical session, those services may be reported using separate procedure code(s) with modifier 80 or modifier 82 added, as appropriate.

66 Surgical Team: Under some circumstances, highly complex procedures (requiring the concomitant services of several physicians or other qualified health care professionals, often of different specialties, plus other highly skilled, specialty trained personnel, various types of complex equipment) are carried out under the “surgical team” concept. Such circumstances may be identified by each participating individual with the addition of modifier 66 to the basic procedure number used for reporting services.

73 Discontinued Outpatient Hospital/Ambulatory Surgery Center (ASC) Procedure Prior to the Administration of Anesthesia: Due to extenuating circumstances or those that threaten the well-being of the patient, the physician may cancel a surgical or diagnostic procedure subsequent to the patient's surgical preparation (including sedation when provided, and being taken to the room where the procedure is to be performed), but prior to the administration of anesthesia (local, regional block(s) or general). Under these circumstances, the intended service that is prepared for but canceled can be reported by its usual procedure number and the addition of modifier 73. Note: The elective cancellation of a service prior to the administration of anesthesia and/or surgical preparation of the patient should not be reported. For physician reporting of a discontinued procedure, see modifier 53.

74 Discontinued Outpatient Hospital/Ambulatory Surgery Center (ASC) Procedure After Administration of Anesthesia: Due to extenuating circumstances or those that threaten the well-being of the patient, the physician may terminate a surgical or diagnostic procedure after the administration of anesthesia (local, regional block(s), general) or after the procedure was started (incision made, intubation started, scope inserted, etc.). Under these circumstances, the procedure started but terminated can be reported by its usual procedure number and the addition of modifier 74. Note: The elective cancellation of a service prior to the administration of anesthesia and/or surgical preparation of the patient should not be reported. For physician reporting of a discontinued procedure, see modifier 53.

76 Repeat Procedure or Service by Same Physician or Other Qualified Health Care Professional: It may be necessary to indicate that a procedure or service was repeated by the same physician or other qualified health care professional subsequent to the original procedure or service. This circumstance may be reported by adding modifier 76 to the repeated procedure or service. Note: This modifier should not be appended to an E/M service.

77 Repeat Procedure by Another Physician or Other Qualified Health Care Professional: It may be necessary to indicate that a basic procedure or service was repeated by another physician or other qualified health care professional subsequent to the original procedure or service. This circumstance may be reported by adding modifier 77 to the repeated procedure or service. Note: This modifier should not be appended to an E/M service.

78 Unplanned Return to the Operating Room/Procedure Room by the Same Physician or Other Qualified Health Care Professional Following Initial Procedure for a Related Procedure During the Postoperative Period: It may be necessary to indicate that another procedure was performed during the postoperative period of the initial procedure (unplanned procedure following initial procedure). When this procedure is related to the first and requires the use of the operating/procedure room, it may be reported by adding modifier 78 to the related procedure. (For repeat procedures, see modifier 76.)

79 Unrelated Procedure or Service by the Same Physician or Other Qualified Health Care Professional During the Postoperative Period: The individual may need to indicate that the performance of a procedure or service during the postoperative period was unrelated to the original procedure. This circumstance may be reported by using modifier 79. (For repeat procedures on the same day, see modifier 76.)

80 Assistant Surgeon: Surgical assistant services may be identified by adding modifier 80 to the usual procedure number(s).

81 Minimum Assistant Surgeon: Minimum surgical assistant services are identified by adding modifier 81 to the usual procedure number.

82 Assistant Surgeon (when qualified resident surgeon not available): The unavailability of a qualified resident surgeon is a prerequisite for use of modifier 82 appended to the usual procedure code number(s).

90 Reference (Outside) Laboratory: When laboratory procedures are performed by a party other than the treating or reporting physician or other qualified health care professional, the procedure may be identified by adding modifier 90 to the usual procedure number.

91 Repeat Clinical Diagnostic Laboratory Test: In the course of treatment of the patient, it may be necessary to repeat the same laboratory test on the same day to obtain subsequent (multiple) test results. Under these circumstances, the laboratory test performed can be identified by its usual procedure number and the addition of modifier 91. Note: This modifier may not be used when tests are rerun to confirm initial results; due to testing problems with specimens or equipment; or for any other reason when a normal, one-time, reportable result is all that is required. This modifier may not be used when other code(s) describe a series of test results (e.g., glucose tolerance tests, evocative/suppression testing). This modifier may only be used for laboratory test(s) performed more than once on the same day on the same patient.

92 Alternative Laboratory Platform Testing: When laboratory testing is being performed using a kit or transportable instrument that wholly or in part consists of a single use, disposable analytical chamber, the service may be identified by adding modifier 92 to the usual laboratory procedure code (HIV testing 86701–86703 and 87389). The test does not require permanent dedicated space; hence by its design it may be hand carried or transported to the vicinity of the patient for immediate testing at that site, although location of the testing is not in itself determinative of the use of this modifier.

93 Synchronous Telemedicine Service Rendered Via Telephone or Other Real-Time Interactive Audio-Only Telecommunications System: Synchronous telemedicine service is defined as a real-time interaction between a physician or other qualified health care professional and a patient who is located away at a distant site from the physician or other qualified health care professional. The totality of the communication of information exchanged between the physician or other qualified health care professional and the patient during the course of the synchronous telemedicine service must be of an amount and nature that is sufficient to meet the key components or requirements of the same service when rendered via a face-to-face interaction.

95 Synchronous Telemedicine Service Rendered Via a Real-Time Interactive Audio and Video Telecommunications System: Synchronous telemedicine service is defined as a real-time interaction between a physician or other qualified health care professional and a patient who is located at a distant site from the physician or other qualified health care professional. The totality of the communication of information exchanged between the physician or other qualified health care professional and patient during the course of the synchronous telemedicine service must be of an amount and nature that would be sufficient to meet the key components or requirements of the same service when rendered via a face-to-face interaction. Modifier 95 may only be appended to the services listed in Appendix P (of CPT). Appendix P is the list of CPT codes for services that are typically performed face-to-face, but may be rendered via real-time (synchronous) interactive audio and video telecommunications system.

96 Habilitative Services: When a service or procedure that may be either habilitative or rehabilitative in nature is provided for habilitative purposes, the physician or other qualified health care professional may add modifier 96 to the service or procedure code to indicate that the service or procedure provided was a habilitative service. Habilitative services help an individual learn skills and functioning for daily living that the individual has not yet developed, and then keep or improve those learned skills. Habilitative services also help an individual keep, learn, or improve skills and functioning for daily living.

97 Rehabilitative Services: When a service or procedure that may be either habilitative or rehabilitative in nature is provided for rehabilitative purposes, the physician or other qualified health care professional may add modifier 97 to the service or procedure code to indicate that the service or procedure provided was a rehabilitative service. Rehabilitative services help an individual keep, get back, or improve skills and functioning for daily living that have been lost or impaired because the individual was sick, hurt, or disabled.

99 Multiple Modifiers: Under certain circumstances, 2 or more modifiers may be necessary to completely delineate a service. In such situations, modifier 99 should be added to the basic procedure, and other applicable modifiers may be listed as part of the description of the service.

TC Technical Component Only: Certain procedures are a combination of a physician component and a technical component. When the technical component is reported separately by a physician or clinic, the service may be identified by adding modifier TC to the usual procedure number.

PA Services Performed by a Physician Assistant: When services of a physician assistant are performed, identify the services by adding modifier PA to the usual procedure code.

NP Services Performed by a Nurse Practitioner: When services of a nurse practitioner are performed, identify the services by adding modifier NP to the usual procedure code.

AA Anesthesia Services Performed Personally by Anesthesiologist: Report modifier AA when the anesthesia services are personally performed by an anesthesiologist.

AD Medical Supervision by a Physician: More Than 4 Concurrent Anesthesia Procedures: Report modifier AD when the anesthesiologist supervises more than 4 concurrent anesthesia procedures.

G8 Monitored Anesthesia Care (MAC) for Deep, Complex, Complicated or Markedly Invasive Surgical Procedures: Report modifier G8 when monitored anesthesia care is required for deep, complex, complicated, or markedly invasive surgical procedures.

G9 Monitored Anesthesia Care for Patient Who Has a History of Severe Cardiopulmonary Condition: Report modifier G9 when monitored anesthesia care is required for a patient who has a history of severe cardiopulmonary condition.

QK Medical Direction of 2, 3, or 4 Concurrent Anesthesia Procedures Involving Qualified Individuals: Report modifier QK when the anesthesiologist supervises 2, 3, or 4 concurrent anesthesia procedures.

QS Monitored Anesthesia Care Service: The QS modifier is for informational purposes.

QX CRNA Service with Medical Direction by a Physician: Regional or general anesthesia provided by the CRNA with medical direction by a physician may be reported by adding modifier QX.

QY Medical Supervision of 1 CRNA by an Anesthesiologist: Report modifier QY when the anesthesiologist supervises 1 CRNA.

QZ CRNA Service without Medical Direction by a Physician: Regional or general anesthesia provided by the CRNA without medical direction by a physician may be reported by adding modifier QZ.

4.7 Hospital Outpatient and Ambulatory Surgical Treatment Methodology

4.7.1 Hospital Outpatient and Ambulatory Surgery Centers shall be reimbursed pursuant to 19 Del.C. §2322B(3).

4.7.2 The Centers for Medicare and Medicaid Services (CMS) has established the Hospital Outpatient Prospective Payment System (OPPS) for reimbursement of hospital outpatient services. The OPPS Rules and Guidelines shall be followed for hospital outpatient and ambulatory surgery center (ASC) services unless otherwise indicated in these rules and regulations. Specific exceptions are indicated in the sections for Hospital Outpatient/ASC or in the General Guidelines. The Health Care Payment System (HCPS) guidelines shall apply if there is a difference between the OPPS guidelines and the HCPS.

4.7.3 Reimbursement shall be made at the lesser of the maximum allowable or billed charges notwithstanding the contract provision in 19 Del.C. §2322B(6). Rules regulating payment of hospital outpatient and ASC fees are primarily from OPPS. Reimbursement for hospital outpatient and ASCs shall be in compliance to The Code of Federal Regulations (CFR) Part 4.19 et seq. of Title 42. OPPS reimbursement incorporates Ambulatory Payment Classification (APC) groups. Procedure codes (HCPCS Level I and II) are assigned an APC group based on clinical characteristics and cost similarities. CMS assigns relative weights to the APC groups. CPT Category II and III codes may fall in an APC, they are not recognized in the HCPS.

4.7.4 The maximum allowable reimbursement for hospital outpatient services shall be based on the CMS relative weight and status indicators for each APC group multiplied by an appropriately calculated conversion factor for hospital outpatient as published on the Department of Labor web site and relative weight and status indicators listed in Addendum B - Final OPPS Payment by HCPCS Code for CY January 1, 2015. New codes will use the relative weights and status indicator for the year the codes incorporated. Link to Addendum B: http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Addendum-A-and-Addendum-B-Updates.html

4.7.5 For purposes of this section of the Fee Schedule, "ambulatory surgery center" means an establishment with an organized medical staff of physicians; with permanent facilities that are equipped and operated primarily for the purpose of performing surgical procedures; with continuous physicians and registered nurses on site when the facility is open. An ambulatory surgery center may be a freestanding facility or may be attached to a hospital facility. For purposes of Workers' Compensation reimbursement to ASCs, the facility must be an approved Medicare ASC, or certified by the American Association for the Accreditation of Ambulatory Surgery Facilities (AAA).

4.7.6 The maximum allowable reimbursement for ASC services shall be based on the CMS relative weight and status indicators for each APC group multiplied by an appropriately calculated conversion factor for ASCs as published on the Department of Labor web site and relative weight listed in Addendum B - Final OPPS Payment by HCPCS Code for CY January 1, 2015.

4.7.7 Hospital Outpatient and Ambulatory Surgery Center (ASC) Fee Schedule Methodology:

4.7.7.1 ASC and hospital outpatient charge data was submitted and consolidated.

4.7.7.2 The 2014 Medicare outpatient prospective payment system weights were applied and a total weight for each CPT/HCPCS code was calculated.

4.7.7.3 ASC and hospital outpatient payments were estimated.

4.7.7.4 The weights of all codes and the payments were summed.

4.7.7.5 Total payment was divided by the total weight to produce an “effective current conversion factor.”

4.7.7.6 The fee schedule shall result in a reduction of 20% in aggregate workers’ compensation medical expenses – inpatient hospital facility, outpatient hospital facility, ambulatory surgery center and other health care providers (professional services) – by the year beginning January 31, 2015, an additional reduction of 5% of workers’ compensation medical expenses by the year beginning January 31, 2016, and an additional reduction of 8% of workers’ compensation medical expenses by the year beginning January 31, 2017.

4.7.7.7 This methodology shall include a geographic adjustment based on Delaware geozips.

4.7.7.8 CPT and HCPCS medical codes for treatment in an ambulatory surgery center and not addressed in this schedule shall be reimbursed a percentage of actual charge for geozip 197 and for geozip 199.

4.8 Dental Services

4.8.1 Whenever the health care payment system does not address a particular dental code, service, or treatment in the fee schedule, the amount of reimbursement shall be a percentage reduction from 85% of the actual charge.

4.9 Emergency Department of a Hospital. Emergency services in a hospital shall be reimbursed pursuant to 19 Del.C. §2322B(3).

4.10 Inpatient Hospital

4.10.1 Hospital fees shall be reimbursed pursuant to 19 Del.C. §2322B(3).

4.10.2 Definition. A hospital (other than psychiatric) means an institution which is primarily engaged in providing, by or under the supervision of physicians, to inpatients, diagnostic and therapeutic services for medical diagnosis, treatment, and care of injured, disabled, or sick persons; or rehabilitation services for the rehabilitation of injured, disabled, or sick persons. To be eligible to participate in Medicare, a hospital must also be an institution which:

4.10.2.1 Maintains clinical records on all patients;

4.10.2.2 Has bylaws in effect with respect to its staff of physicians;

4.10.2.3 Has a requirement that every patient must be under the care of a physician;

4.10.2.4 Provides 24-hour nursing service rendered or supervised by a registered professional nurse, and has a licensed practical nurse or registered professional nurse on duty at all times;

4.10.2.5 Has in effect a hospital utilization review plan;

4.10.2.6 Is licensed or is approved by the State or local licensing agency as meeting the standards established for such licensing; and

4.10.2.7 Meets other health and safety requirements found necessary by the Secretary of Health, and Human Services. (These additional requirements may not be higher than comparable ones prescribed for accreditation by the Joint Commission on Accreditation of Hospitals with exceptions specified in the law).

4.10.3 MS-DRGs and discharge date shall be used to determine the maximum allowable reimbursement for Inpatient hospital services. The dollar amount shall be calculated by using the CMS MS-DRG 2015 relative weights multiplied by a base rate of an appropriately calculated conversion factor as published on the Department of Labor web site. The maximum allowable reimbursement is payment in full. New DRGs will be based on year incorporated. MS-DRGs not covered in this schedule shall be reimbursed at a percentage reduction of the actual charge.

4.10.4 The hospital fee schedule methodology is as follows:

4.10.4.1 Hospital data was submitted and consolidated.

4.10.4.2 The 2014 Medicare inpatient weights were applied and a total weight for each MS-DRG was calculated.

4.10.4.3 Hospitals supplied payment amounts.

4.10.4.4 The weights of all codes and the payments were summed.

4.10.4.5 The total payments were divided by the total weight to produce an “effective current conversion factor.”

4.10.4.6 The fee schedule shall result in a reduction of 20% in aggregate workers’ compensation medical expenses – inpatient hospital facility, outpatient hospital facility, ambulatory surgery center and other health care providers (professional services) – by the year beginning January 31, 2015, an additional reduction of 5% of workers’ compensation medical expenses by the year beginning January 31, 2016, and an additional reduction of 8% of workers’ compensation medical expenses by the year beginning January 31, 2017.

4.10.4.7 This methodology shall include a geographic adjustment based on Delaware geozips.

4.10.5 Other Inpatient Facility Fees

4.10.5.1 Services provided at specialty hospitals (such as rehabilitation hospitals) shall be reimbursed using the current version Medicare pricer tool for the appropriate specialty hospital found at www.cms.gov/PCPricer/. The maximum reimbursement shall be the pricer tool’s Grand Total Amount multiplied by the average percentage of acute care hospitals above Medicare, as published on the Department of Labor web site.

4.10.5.2 Payment shall be made within 30 days after the specialty hospital provides the required medical and billing information.

4.10.6 Inpatient Care

4.10.6.1 Definition. For purposes of this fee schedule, “inpatient” means being admitted to a hospital setting for 24 hours or more. An inpatient admission does not require official admission to the hospital.

4.10.6.2 Billing and Reimbursement Rules for Inpatient Care

4.10.6.2.1 Facilities must submit the bill for inpatient services within 30 days after discharge. For those cases involving extended hospitalization, interim bills must be submitted every 30 days.

4.10.6.2.2 Reimbursement for acute inpatient hospital services shall be the maximum reimbursement allowance fixed by the rules set forth in this section of the Fee Schedule, regardless of the total charge.

4.10.6.2.3 Non-covered charges include but are not necessarily limited to:

4.10.6.2.3.1 Convenience items;

4.10.6.2.3.2 Charges for services not related to the work injury/illness;

4.10.6.2.3.3 Services that were not certified by the payer or their representative as medically necessary.

4.10.6.2.4 When reviewing surgical claims the following apply:

4.10.6.2.4.1 Most of the following operative procedures require cardiopulmonary monitoring either by the physician performing the procedure or an anesthesiologist/anesthetist. Because these services are integral to the operating room environment, these are considered as part of the OR fee and are not separately reimbursed:

4.10.6.2.4.1.1 Cardiac monitors;

4.10.6.2.4.1.2 Oximetry;

4.10.6.2.4.1.3 Blood pressure monitor;

4.10.6.2.4.1.4 Lasers;

4.10.6.2.4.1.5 Microscopes;

4.10.6.2.4.1.6 Video equipment;

4.10.6.2.4.1.7 Set up fees;

4.10.6.2.4.1.8 Additional OR staff;

4.10.6.2.4.1.9 Gowns;

4.10.6.2.4.1.10 Gloves;

4.10.6.2.4.1.11 Drapes;

4.10.6.2.4.1.12 Towels;

4.10.6.2.4.1.13 Mayostand covers;

4.10.6.2.4.1.14 On-call or call-back fees;

4.10.6.2.4.1.15 After-hours fees.

4.10.6.2.5 Billing for surgery packs as well as individual items in the packs is not separately reimbursed.

4.10.6.2.6 A majority of invasive procedures requires availability of vascular and/or airway access; therefore, the work associated with obtaining this access is included in the cost of the service, i.e., anesthesia—airway access is associated with general anesthesia and is included in the anesthesia charges.

4.10.6.2.7 Implants, Durable Medical Equipment, and Supplies. Generally, durable medical equipment and supplies provided or administered in a hospital setting are not separately reimbursed since they are included in the payment reimbursement.

4.10.7 Observation Services

4.10.7.1 Definition. Observation services are those services furnished by a hospital on the hospital’s premises, and include use of a bed and periodic monitoring by a hospital’s staff. The service must be reasonable and necessary to evaluate a patient’s condition or to determine need for inpatient admission. To qualify for observation status, the patient needs observation due to an unforeseen circumstance or has a medical condition with a significant degree of instability.

4.10.7.2 General Guidelines

4.10.7.2.1 Observation begins when the patient monitoring begins and ends when the order for discharge is written or given verbally by the physician.

4.10.7.2.2 On rare occasions, an observation stay may be extended to 48 hours. In such cases, medical necessity must be established and pre-authorization must be given for payment by the payer.

4.10.7.2.3 Services which are NOT considered necessary for observation are as follows:

4.10.7.2.3.1 Services that are not reasonable and necessary for the diagnosis and treatment of the work related injury, but are provided for convenience of the patient, family, or physician;

4.10.7.2.3.2 Any substitution of an outpatient observation for a medically appropriate inpatient admission

4.10.7.2.3.3 Services ordered as inpatient by the physician but billed as outpatient by the facility

4.10.7.2.3.4 Standing orders for observation following outpatient surgery

4.10.7.2.3.5 Test preparation for a surgical procedure

4.10.7.2.3.6 Continued care of a patient who has had a significant procedure as identified with OPPS indicator S or T

4.10.7.2.4 Observation is not reimbursable for routine preparation furnished prior to an outpatient service or recovery after an outpatient service. Please refer to the criteria for observation services.

4.11 Other Qualified Health Care Professional

4.11.1 An Other Qualified Health Care Professional, such as a certified registered nurse anesthetist ("CRNA"), physician assistant ("PA") or nurse practitioner ("NP"), shall be reimbursed at the same rate as other health care professionals when the allied health care professional is performing, coding and billing for the same services as other health care professionals if a physician health care provider is physically present when the service or treatment is rendered, and shall be reimbursed at 80% of the primary health care provider's rate if a physician health care provider is not physically present when the service or treatment is rendered.

4.11.2 Notwithstanding language to the contrary, service provided by a CRNA when the QZ modifier applies shall be reimbursed at the same rate as if the services had been performed by an anesthesiologist.

4.12 Independently Operated Diagnostic Testing Facility

4.12.1 Charges of an independently operated diagnostic testing facility shall be subject to the professional services and HCPCS Level II health care payment system where applicable. An independent diagnostic testing facility is an entity independent of a hospital or physician's office, whether a fixed location, a mobile entity, or an individual non-physician practitioner, in which diagnostic tests are performed by licensed or certified non-physician personnel under appropriate physician supervision.

4.12.2 In the event that the professional services and HCPCS Level II health care payment system is not addressed, the fee for reimbursement of independent diagnostic testing facility services shall be a percentage reduction from 85% of the actual charge.

4.12.3 The payment system will be adjusted yearly pursuant to 19 Del.C. §2322B(5) for a procedure, treatment or service in effect in January of that year.

4.13 Pathology

4.13.1 The maximum allowable reimbursement for pathology will be determined pursuant to 19 Del.C. §2322B.

4.13.2 Whenever the health care payment system does not address a pathology service or procedure in the schedule, the amount of reimbursement shall be a percentage reduction from 85% of the actual charge. When a professional component is displayed as 0%, the service is 100% technical. The professional service is $0.00 and not reimbursed as POC.

4.13.3 The payment system will be adjusted yearly pursuant to 19 Del.C. §2322B(5) for a procedure, treatment or service in effect in January of that year.

4.14 Pharmacy

4.14.1 Prescribed drugs are capped at the lesser of the provider's usual charge; a negotiated contract amount; or the Average Wholesale Price (AWP) for the National Drug Code (NDC) for the prescription drug or medicine on the day it was dispensed minus a percentage reduction set by the Workers' Compensation Oversight Panel plus a dispensing fee set by the Workers' Compensation Oversight Panel for brand-name drugs or medicines and generic drugs or medicines. The Workers' Compensation Oversight Panel shall be authorized to set different percent reductions and dispensing fees for brand drugs or medicines and generic drugs or medicines. Absent a contract, which is governed by 19 Del.C. §2322B(4), the actual charge is the maximum allowed, if it is less than the amount specified in this regulation. Physicians dispensing drugs from their office do not receive the dispensing fee referenced above.

4.14.2 Definitions:

The following words and terms, when used in this regulation, have the following meaning:

"Average Wholesale Price" or "AWP" means the average wholesale price of a prescription drug as provided in the most current release of the Medi-Span Master Drug Database by Wolters Kluwar Health on the day a prescription drug is dispensed or other nationally recognized drug pricing index adopted by the Workers’ Compensation Oversight Panel.

"Brand name drug" means a drug for which an application is approved under the Federal Food, Drug, and Cosmetic Act Section 505(c).

"Generic drug" means a drug for which an application is approved under the Federal Food, Drug, and Cosmetic Act Section 505(j).

4.14.3 Notwithstanding any other provision, if a prescription drug or medicine has been repackaged, the Average Wholesale Price used to determine the maximum reimbursement in controverted and uncontroverted cases shall be the Average Wholesale Price for the underlying drug product, as identified by its national drug code, from the original labeler.

4.14.4 Compounding includes the preparation, mixing, assembling, packaging, or labeling of a drug or device as the result of a practitioner-patient-pharmacist relationship in the course of professional practice. Compound drugs shall be billed by listing each drug included in the compound and separately calculating the charge for each drug, using national drug codes (NDC). When compounding, a single compounding fee of $10 per prescription shall be added to the calculated total.

4.14.5 As of the effective date of this regulation, Oxycontin as well as oxycodone extended release; and Actiq, as well as transmucosal fentanyl, are not on the Preferred or Non-Preferred Medication List and may only be used with prior written approval of the employer or its insurance carrier. However, an employee on a stable dose of Oxycontin prior to the effective date of this regulation may continue the use of this medication after the effective date of this regulation.

4.14.6 The Fee Schedule created by this regulation shall not apply to prescription drugs or medicines provided as part of treatment subject to the inpatient Fee Schedule set forth in 19 Del.C. §2322B(3). No separate payment for pharmacy is authorized in an inpatient hospital setting.

4.14.7 Pursuant to this regulation, the "Preferred Agents" and "Non-Preferred Agents" categories, as set forth on the Department of Labor (DOL) web site is hereby adopted. The Workers’ Compensation Oversight Panel shall review on an annual basis, beginning July 1, 2014, those portions of the Preferred Drug List (PDL) referenced in subsection 4.14.2 through 4.14.6.

4.14.8 When a brand name drug is prescribed to treat an injury for which a carrier or self-insured employer is liable, the pharmacist or medical provider dispensing the drug or medication shall substitute a preferred/generic drug pursuant to this regulation as set forth in subsection 4.14.2 through 4.14.6. A physician may prescribe and a pharmacist must dispense a non-preferred/brand name drug or medication only upon the physician's or other authorized individual's completion of the "Justification For Use Of Non-Preferred Medication" form, approved by the Workers’ Compensation Oversight Panel and set forth on the Department of Labor (DOL) web site. A provider may prescribe a medication from the Non-Preferred Agent list if the patient has trialed the use of 2 preferred agents and the trials have failed due to lack of efficacy or unacceptable side effects. Preferred agent trials should be documented in the medical record.

4.15 Total Component/Professional Component, Technical Component

4.15.1 A total physician fee includes both the professional component and the technical component needed to accomplish the procedure. Explanations of the professional component and the technical component are listed in subsections 4.15.2 and 4.15.3. The values listed in the Amount column represent the total reimbursement. Under no circumstance shall the combined amounts of the professional and technical components exceed the amount of the total component in the professional fee schedule.

4.15.2 Professional Component: The professional component represents the reimbursement allowance of the professional services of the physician and is identified by the use of modifier 26. This includes examination of the patient when indicated, performance or supervision of the procedure, interpretation and written report of the examination, and consultation with the referring physician. Percentages in the PC Amount column are intended for the services of the professional for the professional component only and do not include any other charges. To identify a charge for a professional component only, use the five-digit code followed by modifier 26.

4.15.3 Technical Component: The technical component includes charges made by the physician or clinic to cover the technical services performed. The technical component is displayed in professional services fee schedule by the percentage in the TC Amount column. To identify a charge for a technical component only, use of the five-digit code followed by HCPCS Level II modifier TC. Reimbursement for technical services provided by a facility are listed under the Hospital, ASC or Hospital Outpatient fee schedule.

4.16 Billing and Payment for Health Care Services

4.16.1 19 Del.C. §2322F provides provisions for billing and payment of health care services.

4.16.2 Those healthcare providers who obtained certification pursuant to 19 Del.C. §2322D are not required to first preauthorize each health care procedure, office visit or health care service to be provided to an injured employee with the employer or insurance carrier.

4.16.3 Payment Rates for Physicians, Ambulatory Surgery Centers, and Hospitals (Fee Schedules) will be available on the Department of Labor’s website.

4.17 Fees for Non-Clinical Services

4.17.1 Pursuant to 19 Del.C. §2322B(13), fees for certain non-clinical services are set as follows, and will be periodically revised upon recommendation of the Workers’ Compensation Oversight Panel to reflect changes in the cost of providing such services:

4.17.1.1 Retrieving, copying and transmitting existing medical reports and records, to include copying of medical notes and/or records supporting a bill or invoice for charges for treatment or services:

4.1.17.1.1.1 $25 for search and retrieval;

4.1.17.1.1.2 $1.25 per page for first 20 pages;

4.1.17.1.1.3 $.90 per page for pages 21 through 60;

4.1.17.1.1.4 $.30 per page for pages 61 and thereafter.

4.17.1.2 Testimony by a physician for non-video deposition shall not exceed $2,000; for video deposition: $500 additional.

4.17.1.3 Live testimony by a physician at any hearing or proceeding shall not exceed $3,500.

4.17.1.4 Completion and transmission of any statutorily required report, form or document by a physician/health care provider: Code 99080 is listed on the professional fee schedule.

4.18 Effective Date

4.18.1 The health care payment system shall apply to all services provided after the effective date of the health care payment system regulations and regardless of date of injury.

4.18.2 The Department of Labor of the State of Delaware reserves the authority to determine applicability of all rules of the fee schedule. Any physician, other medical professional, or other entity having questions regarding applicability to their individual reimbursement as it applies to the fee schedule, should direct any such question to the Department of Labor or to such other authority as directed by the Department of Labor.

4.19 General Rules

4.19.1 Definitions

The following words and terms, when used in this regulation, have the following meaning:

“Adjust” means that a payer or a payer's agent reduces or otherwise alters a health care provider's request for payment.

“Appropriate care” means health care that is suitable for a particular patient, condition, occasion, or place.

“Bill” means a claim submitted by a provider to a payer for payment of health care services provided in connection with a covered injury or illness.

“Bill adjustment” means a reduction of a fee on a provider's bill, or other alteration of a provider's bill.

“Carrier” means any stock company, mutual company, or reciprocal or inter-insurance exchange authorized to write or carry on the business of Workers' Compensation Insurance in this State, or self-insured group, or third-party payer, or self-insured employer, or uninsured employer.

“CMS-1500” means the CMS-1500 form and instructions that are used by non institutional providers and suppliers to bill for outpatient services. Use of the most current CMS-1500 form is required.

“Case” means a covered injury or illness occurring on a specific date and identified by the worker's name and date of injury or illness.

“Consultation” means a service provided by a physician whose opinion or advice regarding evaluation and/or management of a specific problem is requested by another physician or other appropriate source. If a consultant, subsequent to the first encounter, assumes responsibility for management of the patient's condition, that physician becomes a treating physician. The first encounter is a consultation and shall be billed and reimbursed as such. A consultant shall provide a written report of his/her findings. A second opinion is considered a consultation.

“Critical care” means care rendered in a variety of medical emergencies that requires the constant attention of the practitioner, such as cardiac arrest, shock, bleeding, respiratory failure, postoperative complications, and is usually provided in a critical care unit or an emergency department.

“Day” means a continuous 24-hour period.

“Diagnostic procedure” means a service that helps determine the nature and causes of a disease or injury.

“Durable medical equipment (DME)” means specialized equipment designed to stand repeated use, appropriate for home use, and used solely for medical purposes.

“Expendable medical supply” means a disposable article that is needed in quantity on a daily or monthly basis.

“Follow-up care” means the care which is related to the recovery from a specific procedure and which is considered part of the procedure's maximum reimbursement allowance, but does not include complications.

“Follow-up days” are the days of care following a surgical procedure which are included in the procedure's maximum reimbursement allowance amount, but which do not include complications. The follow-up day period begins on the day of the surgical procedure(s).

“Independent procedure” means a procedure that may be carried out by itself, completely separate and apart from the total service that usually accompanies it.

“Inpatient services” means services rendered to a person who is admitted as an inpatient to a hospital.

“Medical record” means a record in which the medical service provider records the subjective findings, objective findings, diagnosis, treatment rendered, treatment plan, and return to work status and/or goals and impairment rating as applicable.

“Medical supply” means either a piece of durable medical equipment or an expendable medical supply.

“Observation services” means services rendered to a person who is designated or admitted as observation status.

“Operative report” means the practitioner's written description of the surgery and includes all of the following:

“Optometrist” means an individual licensed to practice optometry.

“Orthotic equipment” means an orthopedic apparatus designed to support, align, prevent, or correct deformities, or improve the function of a movable body part.

“Orthotist” means a person skilled in the construction and application of orthotic equipment.

“Other Qualified Health Care Professional” (OQHP) means the following professionals (please note this list is not all inclusive): nurse practitioner (NP), certified registered nurse anesthetist (CRNA), certified registered nurse (CRN), clinical nurse specialist (CNS), and physician assistant (PA).

“Outpatient service” means services provided to patients at a time when they are not hospitalized as inpatients.

“Payer” means the employer or self-insured employer group, carrier, or third-party administrator (TPA) who pays the provider billings.

“Pharmacy” means the place where the science, art, and practice of preparing, preserving, compounding, dispensing, and giving appropriate instruction in the use of drugs is practiced.

“Physician Specialty”. The rules and reimbursement allowances in the Delaware Workers' Compensation Health Care Payment System do not address physician specialization within a specialty. Payment is not based on the fact that a physician has elected to treat patients with a particular/specific problem. Reimbursement to qualified physicians is the same amount regardless of specialty.

“Procedure code” means a five-digit numerical sequence or a sequence containing an alpha character and preceded or followed by four digits, which identifies the service performed and billed.

“Prosthesis” means an artificial substitute for a missing body part.

“Prosthetist” means a person skilled in the construction and application of prostheses.

“Provider” means a facility, health care organization, or a practitioner who provides medical care or services.

“Secondary procedure” means a surgical procedure performed during the same operative session as the primary surgery but considered an independent procedure that may not be performed as part of the primary surgery.

4.19.2 Injections

4.19.2.1 The State of Delaware payment system for Workers’ Compensation has moved towards an RBRVS and APC based system. While we have used these tools to form the foundation of our reimbursement system, Delaware has not adopted, by default, Medicare Rules for Workers Compensation. We have developed Delaware Specific rules and regulations that govern our payment system. The HCPS does not support health care service or payment denials based on Medicare Rules.

4.19.2.2 The Delaware Workers’ Compensation Health Care Practice Guidelines remain in effect and care is presumed compensable when followed. It is the intent of these regulations that care that was allowed under the previous billing system is still compensable, and under no circumstances is the new billing system defining what care is acceptable, but rather a maximum allowable reimbursement.

4.19.2.3 The Delaware Workers’ Compensation Health Care Practice Guidelines specifically allow the use of provocative discography to identify normal and abnormal motion segments and reimbursed per level. Applicable for both the professional and facility reimbursement.

4.19.2.4 Multiple procedures performed on the spine on the same day at different levels remain reimbursable, as do bilateral procedures. Applicable for both professional and facility reimbursements. Facility services shall be reimbursed at a percent reduction from 85% of charges.

4.19.2.5 Fluoroscopy used as a tool to guide the placement of spinal injection needles remains a separately billable and reimbursable charge for the licensed facility. Reimbursement for the facility shall be a percent reduction from 85% of charges. The reading of the fluoroscopic image is included in the professional billing for the actual procedure.

4.19.2.6 Billing for intravenous conscious sedation during a spinal injection procedure remains separately compensable, as long as that service is provided by a certified registered nurse anesthetist, anesthesiologist or a physician, who has additional formal training and is certified in conscious sedation as well as Advanced Cardiac Life Support (ACLS) certified. The service must also be performed in a facility certified by Medicare or accredited by Accreditation Association for Ambulatory Health Care (AAAHC). Sedation directed by the physician performing the procedure is not compensable.

4.19.2.7 Reimbursement for injections includes charges for the administration of the drug and the cost of the supplies to administer the drug. Medications are charged separately.

4.19.2.8 The description must include the name of the medication, strength, and dose injected.

4.19.2.9 When multiple drugs are administered from the same syringe, reimbursement will be for a single injection.

4.19.2.10 Reimbursement for anesthetic agents such as Xylocaine and Carbocaine, when used for infiltration, is included in the reimbursement for the procedure performed and will not be separately reimbursed.

4.19.2.11 Anesthetic agents for local infiltration must not be billed separately; this is included in the reimbursement for the procedure.

4.19.2.12 Reimbursement for intra-articular and intra-bursal injections (steroids and anesthetic agents) may be separately billed. The description must include the name of the medication, strength, and volume given.

4.19.3 General Ground Rules

4.19.3.1 Multiple Procedures. It is appropriate to designate more than 1 procedure that is rendered on the same date by separate entries. For Example, if a level three established patient office visit (99213) and an ECG (93000) are performed during the visit, it is appropriate to designate both the established patient office visit and the ECG. In this instance both 99213 and 93000 would be reported.

4.19.3.2 Materials Supplied by Physician. Supplies and equipment used in conjunction with medication administration should be billed with the appropriate HCPCS codes and shall be reimbursed according to the Fee Schedule.

4.19.3.3 Separate Procedures

4.19.3.3.1 Some of the procedures or services listed in the CPT codebook that are commonly carried out as an integral component of a total service or procedure have been identified by the inclusion of the term "separate procedure." The codes designated as "separate procedure" should not be reported in addition to the code for the total procedure or service of which it is consider an integral component.

4.19.3.3.2 However, when a procedure or service that is designated as a "separate procedure" is carried out independently or considered to be unrelated or distinct from other procedure/services provided at that time, it may be reported by itself, or in addition to other procedures/services by appending modifier 59 to the specific "separate procedure" code to indicate that the procedure is not considered to be a component of another procedure, but is a distinct, independent procedure. This may represent a different session, different procedure or surgery, different site or organ system, separate incision/excision, separate lesion, or separate injury (or area of injury in extensive injuries).

4.19.3.4 Concurrent/Coordinating Care. Providing similar service (e.g., hospital visits by more than 1 physician) to the same injured employee on the same day for treatment of the same illness is concurrent care. When concurrent care is provided, no special reporting is required. Duplicate services, however, (e.g., visit by a physician of the same subspecialty for the same illness which is not a second opinion) will not be reimbursed. The authorized treating physician should coordinate care by all specialists.

4.19.3.5 Alternating Physicians. When physicians of similar skills alternate in the care of a patient (e.g., partners, groups, or same facility covering for another physician on weekends or vacation periods), each physician shall bill individually for the services each person rendered and in accordance with the Medical Fee Schedule.

4.19.3.6 Ground Rules for Physician Assistants (PA) and Nurse Practitioners (NP)

4.19.3.6.1 Physician Supervision. The term "supervise," for billing purposes, encompasses the following supervision requirement:

4.19.3.6.1.1 Direct personal supervision in the office setting does not mean that the physician must be present in the same room with a PA or NP.

4.19.3.6.1.2 However, the physician must be present in the office suite and immediately available to provide assistance and direction throughout the time the PA or NP is performing the services.

4.19.3.6.1.2.1 In this instance, reimbursement should be made at the normal physician payment level as if the physician had provided the service.

4.19.3.6.1.2.2 If the PA or NP provides care to the injured worker and the supervising physician is not immediately available, the reimbursements will be at 80% of the fee schedule rate.

4.19.3.6.2 Billing for PA or NP Service. The physician must render the bill for care, with the ensuing payment for the PA or NP service made directly to the physician employer.

4.19.3.6.3 Management of a New or Established Patient with a New Workers' Compensation Problem

4.19.3.6.3.1 If the physician supervises the physician assistant's or nurse practitioner's evaluation, payment should be made at the physician's normal Workers' Compensation level for PA or NP services rendered in an outpatient setting.

4.19.3.6.3.2 Where on-site direct physician supervision is not available and the physician assistant or nurse practitioner providing patient care is only able to communicate with a physician supervisor by telephone or other effective means of communication, payment for this service should be made at 80% of the Physician Payment Schedule.

4.19.3.6.3.3 Physician assistants and nurse practitioners acting in the capacity of an assistant at surgery will receive 20% percent of the total allowance for the surgical procedures. Payment will be made to the physician assistant's or nurse practitioner's employer (the physician).

4.19.6.3.4 Follow-up Care of an Existing Patient with a Compensable Problem. If the physician supervises the physician assistant's or nurse practitioner's evaluation, payment should be made at the physician's normal reimbursement level for the PA or NP services rendered in the outpatient setting.

4.19.6.3.5 Modifiers for Physician Assistant and Nurse Practitioner Services. When a physician assistant (PA) or nurse practitioner (NP) bills for services other than assistant at surgery, modifiers "PA" or "NP" are used. Modifier 83, AS, is used to identify assistant at surgery services provided by a physician assistant or nurse practitioner.

4.20 Evaluation and Management

4.20.1 Payment Ground Rules for E/M Category

4.20.1.1 General Guidelines

4.20.1.1.1 The E/M section is divided into broad categories such as office visits, hospital visits, and consultations. Most of the categories are further divided into 2 or more subcategories of E/M services. For example, there are 2 subcategories of office visits (new patient and established patient) and there are 2 subcategories of hospital visits (initial and subsequent). The subcategories of E/M services are further classified into levels of E/M services that are identified by specific codes. This classification is important because the nature of a physician's work varies by type of service, place of service, and the injured employee's status.

4.20.1.1.2 Physicians should include CPT codes for specific performance of diagnostic tests/studies for which specific CPT codes are available. These CPT codes should be reported separately, in addition to the appropriate E/M code.

4.20.1.2 Definitions. Certain key words and phrases are used throughout the E/M section. The following definitions are intended to reduce the potential for differing interpretations and to increase the consistency of reporting by physicians in differing specialties.

4.20.1.2.1 New and Established Patient

4.20.1.2.1.1 Except as provided herein, a new patient is one who has not received any professional services from a physician/qualified health care provider or another physician/qualified health care provider of the exact same specialty and subspecialty who belongs to the same group practice, within the past three years. Each time an injured worker has a new compensable workers’ compensation injury, the initial evaluation shall be coded as a new patient.

4.20.1.2.1.2 An established patient is one who has received professional services from a physician (or other qualified health care provider) or another physician (or other qualified health care provider) of the same specialty who belongs to the same group practice, within the past three years.

4.20.1.2.2 On-Call or Substitute Physician. In the instance where a physician is on call for or is covering for the authorized treating physician, the injured employee's encounter will be classified as it would have been by the physician who is not available.

4.20.1.2.3 Emergency Situation. No distinction is made between new and established patients in the emergency room. Emergency room services should be reported for any patient (new or established) who presents for treatment in the emergency department.

4.20.1.2.4 Concurrent Care. Concurrent care is the provision of similar service (e.g., hospital visits) to the same patient by more than 1 physician on the same day. When concurrent care is provided, no special reporting is required.

4.20.1.2.5 Counseling. Counseling is a discussion with an injured employee and/or family concerning 1 or more of the following areas:

4.20.1.2.5.1 Diagnostic results, impressions, and/or recommended diagnostic studies;

4.20.1.2.5.2 Prognosis;

4.20.1.2.5.3 Risks and benefits of management (treatment) options;

4.20.1.2.5.4 Instructions for management (treatment) and/or follow-up;

4.20.1.2.5.5 Importance of compliance with chosen management (treatment) options;

4.20.1.2.5.6 Risk factor reduction;

4.20.1.2.5.7 Injured employee and family education.

4.20.1.2.6 Consultations. As defined in the CPT book, consultation is a type of service provided by a physician whose opinion or advice regarding evaluation and/or management of a specific problem is requested by another physician or appropriate source. Consultations are reimbursable only to physicians with the appropriate specialty for the services provided. A consulting physician shall only initiate diagnostic and/or therapeutic services with approval from the authorized treating physician. Following a consultation, if the consulting physician assumes responsibility for management of all or any part of the injured employee's conditions, the injured employee becomes an "established patient" (rather than follow-up consultation) under the care of the consulting physician.

4.20.1.2.7 Time. The amount of time spent with a patient is a factor to be taken into consideration when selecting the appropriate E&M code. CPT guidelines are to be followed.

4.20.2 Payment Modifiers for E/M Category

4.20.2.1 A modifier indicates that a service or procedure performed has been altered by some specific circumstance but has not changed its definition or code. The modifying circumstance shall be identified by the appropriate modifier following the procedure code. The 2-digit modifier should be placed after the usual procedure number. If more than 1 modifier is used, place the "Multiple Modifiers" code 99 immediately after the procedure code. This indicates that 1 or more additional modifier codes will follow. Only certain modifiers in each of the categories (Evaluation and Management, Anesthesia, Surgery, Pathology/Laboratory, Radiology, General Medicine, and Physical Medicine) will be recognized for reimbursement purposes. It is understood that modifiers not only clarify the services performed, but that the fee may be adjusted accordingly based on the increase or decrease in service.

4.20.2.2 The modifiers listed in subsection 4.20.2.2 of this regulation may differ from those published by the American Medical Association. Medical providers submitting workers' compensation billing shall use only the modifiers set out in the fee schedule. The following modifiers will be recognized for reimbursement by the fee schedule for Evaluation and Management (E/M) codes:

24 Unrelated Evaluation and Management Service by the Same Physician or Other Qualified Health Care Professional during a Postoperative Period: The physician or other qualified health care professional may need to indicate that an E/M service was performed during a postoperative period for a reason(s) unrelated to the original procedure. This circumstance may be reported by adding modifier 24 to the appropriate level of E/M service.

25 Significant, Separately Identifiable Evaluation and Management Service by the Same Physician or other qualified Health Care Professional on the Same Day of the Procedure or Other Service: It may be necessary to indicate that on the day a procedure or service identified by a CPT code was performed, the patient's condition required a significant, separately identifiable E/M service above and beyond the other service provided or beyond the usual preoperative and postoperative care associated with the procedure that was performed. A significant, separately identifiable E/M service is defined or substantiated by documentation that satisfies the relevant criteria for the respective E/M service to be reported (see Evaluation and Management Services Guidelines for instructions on determining level of E/M service). The E/M service may be prompted by the symptom or condition for which the procedure and/or service was provided. As such, different diagnoses are not required for reporting of the E/M on the same date. This circumstance may be reported by adding modifier 25 to the appropriate level of E/M service. Note: This modifier is not used to report and E/M service that resulted in a decision to perform surgery. See modifier 57. For significant, separately identifiable non-E/M services, see modifier 59.

52 Reduced Services: Under certain circumstances, a service or procedure is partially reduced or eliminated at the discretion of the physician or other qualified health care professional. Under these circumstances, the service provided can be identified by its usual procedure number and the addition of modifier 52, signifying that the service is reduced. This provides a means of reporting reduced services without disturbing the identification of the basic service. Note: For hospital outpatient reporting of a previously scheduled procedure/service that is partially reduced or canceled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifiers 73 and 74 (see modifiers approved for ASC hospital outpatient use).

53 Discontinued Procedure: Under certain circumstances, the physician or other qualified health care professional may elect to terminate a surgical or diagnostic procedure. Due to extenuating circumstances or those that threaten the well-being of the patient, it may be necessary to indicate that a surgical or diagnostic procedure was started but discontinued. This circumstance may be reported by adding modifier 53 to the code reported by the individual for the discontinued procedure. Note: This modifier is not used to report the elective cancellation of a procedure prior to the patient's anesthesia induction and/or surgical preparation in the operating suite. For outpatient hospital/ambulatory surgery center (ASC) reporting of a previously scheduled procedure/service that is partially reduced or canceled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifiers 73 and 74 (see modifiers approved for ASC hospital outpatient use).

95 Synchronous Telemedicine Service Rendered Via a Real-Time Interactive Audio and Video Telecommunications System: Synchronous telemedicine services is defined as a real-time interaction between a physician or other qualified health care professional and a patient who is located at a distant site from the physician or other qualified health care professional. The totality of the communication of information exchanged between the physician or other qualified health care professional and the patient during the course of the synchronous telemedicine service must be of an amount and nature that would be sufficient to meet the key components and/or requirements of the same service when rendered via a face-to-face interaction. Modifier 95 may only be appended to the services listed in Appendix P (of CPT). Appendix P is the list of CPT codes for services that are typically performed face-to-face, but may be rendered via real-time (synchronous) interactive audio and video telecommunications system.

4.21 Anesthesia

4.21.1 Introduction

4.21.1.1 The formula to calculate anesthesia services provided to employees pursuant to 19 Del.C. §2322B(7) shall be as follows: CMS base units + time units + physical status modifier + qualifying circumstances multiplied by the Conversion Factor.

4.21.1.2 A time unit is a 15 minute increment. Partial units are rounded: 5 minutes or less round down to the previous unit; or more than 5 minutes round up to the next unit.

4.21.1.3 “Conversion Factors” shall be set by the Workers’ Compensation Oversight Panel for each geozip. When applicable, the annual CPI-U adjustment to these “Conversion Factors” shall be published on the Department of Labor website.

4.21.2 Special Circumstances

4.21.2.1 Physical Status Modifiers

4.21.2.1.1 Physical status modifiers are represented by the initial letter P followed by a single digit from 1 to 6 representing these Status Description Units:

4.21.2.1.1.1 P1 A normal healthy patient 0

4.21.2.1.1.2 P2 A patient with mild systemic disease 0

4.21.2.1.1.3 P3 A patient with severe systemic disease 1

4.21.2.1.1.4 P4 A patient with severe systemic disease that is a constant threat to life 2

4.21.2.1.1.5 P5 A moribund patient who is not expected to survive without the operation 3

4.21.2.1.1.6 P6 A patient declared brain-dead whose organs are being removed for donor purposes 0

4.21.2.1.2 The 6 levels in subsections 4.21.2.1.1 - 4.21.2.1.1.6 are consistent with the American Society of Anesthesiologists' (ASA) ranking of patient physical status. Physical status is included in the CPT book to distinguish between various levels of complexity of the anesthesia service provided.

4.21.2.2 Qualifying Circumstances

4.21.2.2.1 Many anesthesia services are provided under particularly difficult circumstances, depending on factors such as extraordinary condition of patient, notable operative conditions, and/or unusual risk factors. This section includes a list of important qualifying circumstances that significantly affect the character of the anesthesia service provided. These procedures would not be reported alone but would be reported as additional procedure numbers qualifying an anesthesia procedure or service.

4.21.2.2.1.1 More than 1 qualifying circumstance may be selected.

99100 Anesthesia for patient of extreme age, younger than 1 year and older than 70 (List separately in addition to code for primary anesthesia procedure) 1.

99116 Anesthesia complicated by utilization of total body hypothermia (List separately in addition to code for primary anesthesia procedure) 5.

99135 Anesthesia complicated by utilization of controlled hypotension (List separately in addition to code for primary anesthesia procedure) 5.

99140 Anesthesia complicated by emergency conditions (specify conditions) (List separately in addition to code for primary anesthesia procedure) (An emergency is defined as existing when delay in treatment of a patient would lead to a significant increase in the threat to life or body part.) 2.

4.21.2.2.1.2 The circumstances and value units in subsection 4.20.2.2.1.1 are consistent with the American Society of Anesthesiologists (ASA) circumstances and values.

4.21.2.2.2 Payers must utilize their medical consultants when there is a question regarding modifiers and/or special circumstances for anesthesia charges.

4.21.3 Monitored Anesthesia Care. Monitored anesthesia care occurs when the attending physician requests that an anesthesiologist or certified nurse anesthetist be present during a procedure. This may be to ensure compliance with accepted procedures of the facility. Monitored anesthesia care includes pre-anesthesia exam and evaluation of the patient. The anesthesiologist or certified nurse anesthetist must participate or provide medical direction for the plan of care. The anesthesiologist, resident, or certified nurse anesthetist must be in continuous physical presence and provide diagnosis and treatment of emergencies. This will also include noninvasive monitoring of cardiocirculatory and respiratory systems with administration of oxygen and/or intravenous administration of medications. Reimbursement will be the same as if general anesthesia had been administered.

4.21.4 Reimbursement for Anesthesia Services

4.21.4.1 Criteria for Reimbursement. Anesthesia services may be billed for any 1 of the 3 following circumstances:

4.21.4.1.1 An anesthesiologist provides total and individual anesthesia service.

4.21.4.1.2 An anesthesiologist directs a CRNA.

4.21.4.1.3 Anesthesia provided by a CRNA working independent of an anesthesiologist's supervision is covered under the following conditions:

4.21.4.1.3.1 The service falls within the CRNA's scope of practice and scope of license as defined by law.

4.21.4.1.3.2 The service is supervised by a licensed health care provider who has prescriptive authority in accordance with the clinical privileges individually granted by the hospital or other health care organization.

4.21.4.2 Reimbursement

4.21.4.2.1 Reimbursement includes the usual pre- and postoperative visits, the care by the anesthesiologist during surgery, the administration of fluids and/or blood, and the usual monitoring services. Unusual forms of monitoring, such as central venous, intra-arterial, and Swan-Ganz monitoring, may be reimbursed separately.

4.21.4.2.2 When an unlisted service or procedure is provided, the value should be substantiated with a report. Unlisted services are identified in this Fee Schedule as by report.

4.21.4.2.3 When it is necessary to have a second anesthesiologist, the necessity should be substantiated.

4.21.4.2.4 Payment for covered anesthesia services is as follows:

4.21.4.2.4.1 When the anesthesiologist provides an anesthesia service directly, payment will be made in accordance with the billing reimbursement rules of this Fee Schedule.

4.21.4.2.4.2 When an anesthesiologist provides medical direction to the CRNA providing the anesthesia service, then the reimbursement will be divided between the 2 of them at 50%.

4.21.4.2.4.3 When the CRNA provides the anesthesia service directly, then payment will be the lesser of the actual charge or the amount listed in the Fee Schedule for that procedure.

4.21.4.2.5 Anesthesiologists, CRNAs must bill their services with the appropriate modifiers to indicate which one provided the service. Bills NOT properly coded may cause a delay or error in reimbursement by the payer. Application of the appropriate modifier to the bill for service is the responsibility of the provider, regardless of the place of service. Modifiers are as follows:

AA Anesthesiologist services performed personally by an anesthesiologist.

AD Medical supervision by a physician: more than 4 concurrent anesthesia procedures.

QK Medical direction of 2, 3, or 4 concurrent anesthesia procedures involving qualified individuals (CRNA) by an anesthesiologist.

QX CRNA service: with medical direction by a physician.

QY Medical direction of 1 certified registered nurse anesthetist (CRNA) by an anesthesiologist.

QZ CRNA service: without medical direction by an anesthesiologist.

4.21.5 Anesthesia Modifiers. All anesthesia services are reported by using the anesthesia five-digit procedure codes. The fee for most procedures may be modified under certain circumstances as listed below. When applicable, the modifying circumstances should be identified by the addition of the appropriate modifier (including the hyphen) after the usual anesthesia code. Certain modifiers require a special report for clarification of services provided.

4.21.5.1 Modifiers commonly used in anesthesia are as follows:

32 Mandated Services: Services related to mandated consultation and/or related services (e.g., third-party payer, governmental, legislative, or regulatory requirement) may be identified by adding modifier 32 to the basic procedure.

53 Discontinued Procedure: Under certain circumstances the physician or other qualified health care professional may elect to terminate a surgical or diagnostic procedure. Due to extenuating circumstances or those that threaten the well-being of the patient, it may be necessary to indicate that a surgical or diagnostic procedure was started but discontinued. This circumstance may be reported by adding modifier 53 to the code reported by the individual for the discontinued procedure. Note: This modifier is not used to report the elective cancellation of a procedure prior to the patient's anesthesia induction and/or surgical preparation in the operating suite. For outpatient hospital/ambulatory surgery center (ASC) reporting of a previously scheduled procedure/service that is partially reduced or cancelled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifiers 73 and 74 (see modifiers approved for ASC hospital outpatient use).

59 Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision or excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate, it should be used rather than modifier 59. Only if no more descriptive modifier available, and use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25.

AA Anesthesia Services Performed Personally by Anesthesiologist: Report modifier AA when the anesthesia services are personally performed by an anesthesiologist.

AD Medical Supervision by a Physician: More Than 4 Concurrent Anesthesia Procedures: Report modifier AD when the anesthesiologist supervises more than 4 concurrent anesthesia procedures.

QS Monitored Anesthesia Care Service: The QS modifier is for informational purposes.

QX CRNA Service with Medical Direction by a Physician (Modified by State): Regional or general anesthesia provided by the CRNA with medical direction by a physician may be reported by adding modifier QX.

QY Medical Supervision of 1 CRNA by an Anesthesiologist (Modified by State): Report modifier QY when the anesthesiologist supervises 1 CRNA.

QZ CRNA Service without Medical Direction by a Physician (Modified by State): Regional or general anesthesia provided by the CRNA without medical direction by a physician may be reported by adding modifier QZ.

4.21.6 Moderate (Conscious) Sedation

4.21.6.1 CPT Codes that Include Moderate (Conscious) Sedation - Moderate (conscious) sedation is a drug induced depression of consciousness during which patients respond purposefully to verbal commands, either alone or accompanied by light tactile stimulation. No interventions are required to maintain a patent airway, and spontaneous ventilation is adequate. Cardiovascular function is usually maintained.

4.21.6.2 Moderate sedation does not include minimal sedation (anxiolysis), deep sedation or monitored anesthesia care (00100-01999).

4.21.6.3 When providing moderate sedation, the following services are included and NOT reported separately:

4.21.6.3.1 Assessment of the patient (not included in intraservice time);

4.21.6.3.2 Establishment IV access and fluids to maintain patency, when performed;

4.21.6.3.3 Administration of agent(s);

4.21.6.3.4 Maintenance of sedation;

4.21.6.3.5 Monitoring of oxygen saturation, heart rate and blood pressure; and

4.21.6.3.6 Recovery (not included in intraservice time).

4.21.6.4 Intraservice time starts with the administration of the sedation agent(s), require continuous face-to-face attendance, and ends at the conclusion of personal contact by the physician providing the sedation.

4.21.6.5 Do not report 99151-99157 in conjunction with 94760-94762.

4.21.6.6 As a result, moderate sedation has been removed from the services in which it was previously inherently included. To further demonstrate the intended use, the moderate sedation symbol (~) has been removed from all services that previously included moderate sedation, and the Appendix G listing has been removed from the code set. Moderate sedation is no longer considered inherent in CPT codes.

4.22 Surgery

4.22.1 General Guidelines

4.22.1.1 Global Reimbursement. The reimbursement allowances for surgical procedures are based on a global reimbursement concept that covers performing the basic service and the normal range of care required after surgery. Global reimbursement includes:

4.22.1.1.1 The operation per se;

4.22.1.1.2 Local infiltration, metacarpal/metatarsal/digital block or topical anesthesia;

4.22.1.1.3 Immediate postoperative care, including dictating operative notes, talking with the family and other physicians;

4.22.1.1.4 Writing orders;

4.22.1.1.5 Evaluating the patient in the post anesthesia recovery area;

4.22.1.1.6 Normal, uncomplicated follow-up care for the time periods indicated in the follow- up days (FUD) column to the right of each procedure code. The number in that column establishes the days during which no additional reimbursement is allowed for the usual care provided following surgery, absent complications or unusual circumstances.

4.22.1.1.7 The maximum reimbursement allowances cover all normal postoperative care, including the removal of sutures by the surgeon or associate. Follow-up days are specified by procedure.

4.22.1.1.8 Follow-up days listed are for 0, 10, or 90 days and are listed in the Fee Schedule as 000, 010, or 090.

4.22.1.2 Follow-up Care for Diagnostic Procedures. Follow-up care for diagnostic procedures (e.g., endoscopy, arthroscopy, injection procedures for radiography) includes only the care related to recovery from the diagnostic procedure itself. Care of the condition for which the diagnostic procedure was performed or of other concomitant conditions is not included and may be listed separately.

4.22.1.3 Follow-up Care for Therapeutic Surgical Procedures. Follow-up care for therapeutic surgical procedures includes only care that is usually part of the surgical procedure. Complications, exacerbations, recurrence, or the presence of other diseases or injuries requiring additional services should be reported separately.

4.22.1.4 Separate Procedures. Some of the procedures or services listed in the CPT codebook that are commonly carried out as an integral component of a total service or procedure have been identified by the inclusion of the term “separate procedure”. The codes designated as “separate procedure” should not be reported in addition to the code for the total procedure or service of which it is considered an integral component.

4.22.1.5 Biopsy Procedures. A biopsy of the skin and another surgical procedure performed on the same lesion on the same day must be billed as 1 procedure.

4.22.1.6 Repair of Nerves, Blood Vessels, and Tendons with Wound Repairs. The repair of nerves, blood vessels, and tendons is usually reported under the appropriate system. The repair of associated wounds is included in the primary procedure unless it qualifies as a complex wound, in which case modifier 51 may be applied. Simple exploration of nerves, blood vessels, and tendons exposed in an open wound is also considered part of the essential treatment of the wound closure and is not a separate procedure unless appreciable dissection is required.

4.22.1.7 Suture Removal. Billing for suture removal by the operating surgeon is not appropriate as this is considered part of the global fee.

4.22.1.8 Supplies and Materials. Supplies and materials provided by the physician (e.g., sterile trays/drugs) over and above those usually included with the office visit may be listed separately using CPT code 99070 or specific HCPCS Level II codes.

4.22.1.9 Implants. Implants of any type are to be billed as part of the hospital or ASC billing. Bone morphogenetic protein is an FDA approved biologic fusion and fracture healing aid. Its use in spine and fracture surgery represents the standard of care in our community, and in both on-label and off-label applications is accepted and to be reimbursed to the facility providing the implant, at rates consistent with implant payment rates determined under the respective ASC and hospital reimbursement guidelines.

4.22.1.10 Aspirations and Injections. Puncture of a cavity or joint for aspiration followed by injection of a therapeutic agent is 1 procedure and should be billed as such.

4.22.1.11 Surgical Assistant

4.22.1.11.1 Physician Surgical Assistant. For the purpose of reimbursement, a physician who assists at surgery is reimbursed as a surgical assistant. Assistant surgeons should use modifier 80 and are allowed 20% of the maximum reimbursement allowance (MRA) for the procedures.

4.22.1.11.2 Registered Nurse Surgical Assistant or Physician Assistant

4.22.1.11.2.1 A physician assistant (PA), or registered nurses (RN) who have completed an approved first assistant training course, may be allowed a fee when assisting a surgeon in the operating room (O.R.).

4.22.1.11.2.2 The maximum reimbursement allowance for the physician assistant or the registered nurse first assistant (RNFA) is 20% of the surgeon’s fee for the procedure(s) performed.

4.22.1.11.2.3 Under no circumstances will a fee be allowed for an assistant surgeon and a physician assistant or RNFA at the same surgical encounter.

4.22.1.11.2.4 Registered nurses on staff in the O.R. of a hospital, clinic, or outpatient surgery center do not qualify for reimbursement as an RNFA.

4.22.1.12 Operative Reports. An operative report must be submitted to the payer before reimbursement can be made for the surgeon’s or assistant surgeon’s services.

4.22.1.13 Needle Procedures. Needle procedures (lumbar puncture, thoracentesis, jugular or femoral taps, etc.) should be billed in addition to the medical care on the same day.

4.22.1.14 Therapeutic Procedures. Therapeutic procedures (injecting into cavities, nerve blocks, etc.) (CPT codes 20526–20610, 64400, and 64450) may be billed in addition to the medical care for a new patient. (Use appropriate level of service plus injection.) In follow-up cases for additional therapeutic injections and/or aspirations, an office visit is only indicated if it is necessary to re-evaluate the patient. In this case, a minimal visit may be listed in addition to the injection. Documentation supporting the office visit charge must be submitted with the bill to the payer. This is clarified in the treatment guidelines in a more specific manner. Trigger point injection is considered 1 procedure and reimbursed as such regardless of the number of injection sites. Two codes are available for reporting trigger point injections. Use 20552 for injections of single or multiple trigger points in 1 or 2 muscles or 20553 when 3 or more muscles are involved.

4.22.1.15 Anesthesia by Surgeon. In certain circumstances it may be appropriate for the attending surgeon to provide regional or general anesthesia. Anesthesia by the surgeon is considered to be more than local or digital anesthesia. Identify this service by adding modifier 47 to the surgical procedure code.

4.22.1.16 Therapeutic/Diagnostic Injections. Injections are considered incidental to the procedure when performed with a related invasive procedure.

4.22.1.17 Intervertebral Biomechanical Device(s) and Use of Codes 22853, 22854, and 22895. Codes 22853, 22854, and 22859 describe the application of an intervertebral biomechanical device to a vertebral defect or interspace. Codes 22853, 22854, or 22859 should be listed in conjunction with a primary procedure without the use of modifier 51. The use of Codes 22853, 22854, or 22859 are limited to 1 instance per single interspace or single vertebral defect regardless of the number of devices applied and infers additional qualifying training, experience, sizing, and/or use of special surgical appliances to insert the biomechanical device. Qualifying devices include manufactured synthetic or allograft biomechanical devices, or methyl methacrylate constructs, and are not dependent on a specific manufacturer, shape, or material of which it is constructed. Qualifying devices are machine cut to specific dimensions for precise application to an intervertebral defect. (For example, the use of codes 22853, 22854, or 22859 would be appropriate during a cervical arthrodesis (22554) when applying a synthetic alloy cage, a threaded bone dowel, or a machine cut hexahedron cortical, cancellous, or corticocancellous allograft biomechanical device. Surgeons utilizing generic non-machined bony allografts or autografts are referred to code sets 20930–20931, 20936–20938 respectively.)

4.22.1.18 Spinal and Cranial Services Require Additional Surgeon. Certain spinal and cranial procedures require the services of an additional surgeon of a different specialty to gain exposure to the spine and brain. These typically are vascular, thoracic and ENT. The surgical exposure portion of these procedures will be billed, dictated and followed separately by the exposure surgeon for their portion of the procedure. Since the exposure surgeon is required based upon the type of surgery recommended by the treating surgeon, it is intended that an approval for the primary procedure includes the approach, and no separate pre-approval or pre-authorization is required. The exposure surgeon is bound by the fee schedule regarding reimbursement and all other rules delineated above.

4.22.1.19 Modifiers for Surgery

50 Bilateral Procedure: Unless otherwise identified in the listings, bilateral procedures that are performed at the same session should be identified by adding modifier 50 to the appropriate five-digit code. Note: This modifier should not be appended to designated "add-on" codes (see Appendix D of CPT).

State Note: There will be no reductions to the procedures billed with the modifier 50.

State Note: Procedures performed bilaterally are reported as 2 line items and modifier 50 is not appended. These codes are identified with CPT specific language at the code or subsection level. Modifiers RT and LT may be appended as appropriate.

51 Multiple Procedures: When multiple procedures, other than E/M services, physical medicine and rehabilitation services, or provision of supplies (e.g., vaccines) are performed at the same session by the same individual, the primary procedure or service may be reported as listed. The additional procedure(s) or service(s) may be identified by appending modifier 51 to the additional procedure or service code(s). Note: This modifier should not be appended to designated “add-on” codes (see Appendix D of CPT).

State Note: There will be no reductions to the procedures billed with the modifier 51.

52 Reduced Services: Under certain circumstances, a service or procedure is partially reduced or eliminated at the discretion of the physician or other qualified health care professional. Under these circumstances, the service provided can be identified by its usual procedure number and the addition of modifier 52 signifying that the service is reduced. This provides a means of reporting reduced services without disturbing the identification of the basic service. Note: For hospital outpatient reporting of a previously scheduled procedure/service that is partially reduced or cancelled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifiers 73 and 74 (see modifiers approved for ASC hospital outpatient use (of CPT)).

53 Discontinued Procedure: Under certain circumstances, the physician or other qualified health care professional may elect to terminate a surgical or diagnostic procedure. Due to extenuating circumstances or those that threaten the well-being of the patient, it may be necessary to indicate that a surgical or diagnostic procedure was started but discontinued. This circumstance may be reported by adding modifier 53 to the code reported by the individual for the discontinued procedure. Note: This modifier is not used to report the elective cancellation of a procedure prior to the patient’s anesthesia induction and/or surgical preparation in the operating suite. For outpatient hospital/ambulatory surgery center (ASC) reporting of a previously scheduled procedure/service that is partially reduced or cancelled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifiers 73 and 74 (see modifiers approved for ASC hospital outpatient use (of CPT)).

State Note: There will be no reductions to the procedures billed with the modifier 59.

80 Assistant Surgeon: Surgical assistant services may be identified by adding modifier 80 to the usual procedure number(s).

81 Minimum Assistant Surgeon: Minimum surgical assistant services are identified by adding modifier 81 to the usual procedure number.

TC Technical Component Only: Certain procedures are a combination of a physician component and a technical component. When the technical component is reported separately, the service may be identified by adding modifier TC to the usual procedure number.

4.23 Hospital Outpatient and Ambulatory Surgery Centers

4.23.1 Definitions

4.23.1.1 For purposes of subsection 4.23 of the Fee Schedule, "ambulatory surgery center" means an establishment with an organized medical staff of physicians; with permanent facilities that are equipped and operated primarily for the purpose of performing surgical procedures; with continuous physicians and registered nurses on site when the facility is open. An ambulatory surgery center may be a freestanding facility or may be attached to a hospital facility. For purposes of Workers' Compensation reimbursement to ASCs, the facility must be an approved Medicare ASC, or accredited by Accreditation Association for Ambulatory Health Care, Inc. (AAAHC).

4.23.1.2 For purposes of subsection 4.23 of the fee schedule, "outpatient services" means services provided to a patient who is not admitted for inpatient or residential care.

4.23.1.3 The maximum allowable reimbursement for hospital outpatient and ASC services shall be based on the CMS relative weight and status indicators for each APC group multiplied by an appropriately calculated ASC conversion factor as published on the Department of Labor web site and relative weight and status indicators listed in Addendum B - Final OPPS Payment by HCPCS Code for CY January 1, 2015. New codes will use the relative weights and status indicator for the year the codes incorporated.

4.23.2 Coding and Billing Rules

4.23.2.1 Facility fees for ambulatory surgery must be billed on the UB-04 form.

4.23.2.2 The CPT/HCPCS codes of the procedures performed determines the reimbursement for the facility fee. Report all procedures performed.

4.23.2.3 The payment rate for an ASC surgical procedure includes all facility services directly related to the procedure performed on the day of surgery. Facility services include:

4.23.2.3.1 Nursing and technician services;

4.23.2.3.2 Use of the facility;

4.23.2.3.3 Drugs, biologicals, surgical dressings, splints, casts and equipment directly related to the provision of the surgical procedure;

4.23.2.3.4 Materials for anesthesia;

4.23.2.3.5 Administration, record keeping and housekeeping items and services.

4.23.2.4 Disposable injection supplies under $75 are included in the facility fee. Those over $75 are reimbursed at 85% of the ASC charge for the item.

4.23.2.5 Separate payment is not made for the following services that are directly related to the surgery:

4.23.2.5.1 Pharmacy;

4.23.2.5.2 Medical/surgical supplies other than those designated in subsection 4.22.2.4;

4.23.2.5.3 Sterile supplies;

4.23.2.5.4 Operating room services;

4.23.2.5.5 Ambulatory surgical care;

4.23.2.5.6 Recovery room;

4.23.2.5.7 Treatment or Observation room.

4.23.2.6 Facility fees do not include physician services, x-rays, diagnostic procedures, laboratory procedures, CRNA or anesthesia physician services, prosthetic devices, ambulance services, braces, artificial limbs or DME for use in the patient's home. These items will be reimbursed according to Fee Schedule.

4.23.3 National Correct Coding Initiative (NCCI) Edits - Hospital CCI Edits. CMS developed the National Correct Coding Initiative (NCCI) to promote national correct coding methodologies and to control improper coding leading to inappropriate payment in Part B claims. CMS developed its coding policies based on coding conventions defined in the American Medical Association's CPT Manual, national and local policies and edits, coding guidelines developed by national societies, analysis of standard medical and surgical practices, and a review of current coding practices. The purpose of the NCCI edits is to prevent improper payment when incorrect code combinations are reported. The Hospital CCI Edit link is found at http://www.cms.gov/Medicare/Coding/NationalCorrectCodInitEd/NCCI-Coding-Edits.html

4.23.4 Physical Therapy. Physical therapy services performed in a hospital outpatient setting shall be reimbursed according to the guidelines outlined in the professional services fee schedule.

4.23.5 Status Indicators (SI)

4.23.5.1 Indicator Item/Code/Service OPPS Payment Status. Services furnished to a hospital outpatient that are paid under a fee schedule or payment system other than OPPS - for example, not paid under OPPS, paid by fiscal intermediaries/MACs under a fee schedule or payment system other than OPPS - are subject to deductible or coinsurance unless indicated.

4.23.5.2 The following is a list of the accepted status indicators (SI) for use with hospital OPPS:

4.23.6 Payment Modifiers for Outpatient Services – Hospital Outpatient and ASC. A modifier indicates that a service or procedure performed has been altered by some specific circumstance but has not changed its definition or code. The modifying circumstance shall be identified by the appropriate modifier following the procedure code. The 2-digit modifier should be placed after the usual procedure number. If more than 1 modifier is used, place the “Multiple Modifiers” code 99 immediately after the procedure code to indicate that additional modifier codes will follow. Place the additional modifiers after modifier 99. Only certain modifiers in each of the categories (Evaluation and Management, Anesthesia, Surgery, Pathology and Laboratory, Radiology, General Medicine, Physical Medicine, Hospital and Hospital Outpatient/ASC Services) will be recognized for reimbursement purposes. The following modifiers will be recognized for reimbursement by the fee schedule for Hospital Outpatient and ASC services codes:

25 Significant, Separately Identifiable Evaluation and Management Service by the Same Physician or Other Qualified Health Care Professional on the Same Day of the Procedure or Other Service: It may be necessary to indicate that on the day a procedure or service identified by a CPT code was performed, the patient’s condition required a significant, separately identifiable E/M service above and beyond the other service provided or beyond the usual preoperative and postoperative care associated with the procedure that was performed. A significant, separately identifiable E/M service is defined or substantiated by documentation that satisfies the relevant criteria for the respective E/M service to be reported (see Evaluation and Management Services Guidelines for instructions on determining level of E/M service). The E/M service may be prompted by the symptom or condition for which the procedure and/or service was provided. As such, different diagnoses are not required for reporting of the E/M services on the same date. This circumstance may be reported by adding modifier 25 to the appropriate level of E/M service. Note: This modifier is not used to report an E/M service that resulted in a decision to perform surgery. See modifier 57. For significant, separately identifiable non-E/M services, see modifier 59.

50 Bilateral Procedure: Unless otherwise identified in the listings, bilateral procedures that are performed at the same session should be identified by adding modifier 50 to the appropriate 5-digit code. State Note: This modifier should not be appended to designated "add-on" codes (see Appendix D (of CPT)).

State Note: There will be no reductions to the procedures billed with the modifier -50.

52 Reduced Services: Under certain circumstances a service or procedure is partially reduced or eliminated at the discretion of the physician or other qualified health care professional. Under these circumstances the service provided can be identified by its usual procedure number and the addition of modifier 52, signifying that the service is reduced. This provides a means of reporting reduced services without disturbing the identification of the basic service. Note: For hospital outpatient reporting of a previously scheduled procedure/service that is partially reduced or cancelled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifiers 73 and 74 (see modifiers approved for ASC hospital outpatient use (of CPT)).

58 Staged or Related Procedure or Service by the Same Physician or Other Qualified Health Care Professional During the Postoperative Period: It may be necessary to indicate that the performance of a procedure or service during the postoperative period was: (a) planned or anticipated (staged); (b) more extensive than the original procedure; or (c) for therapy following a surgical procedure. This circumstance may be reported by adding modifier 58 to the staged or related procedure. Note: For treatment of a problem that requires a return to the operating/procedure room (e.g., unanticipated clinical condition), see modifier 78.

59 Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together, but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision/excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate it should be used rather than modifier 59. Only if no more descriptive modifier is available, and the use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25.

State Note: There will be no reductions to procedures billed with modifier 59.

73 Discontinued Outpatient Hospital/Ambulatory Surgery Center (ASC) Procedure Prior to the Administration of Anesthesia: Due to extenuating circumstances or those that threaten the well-being of the patient, the physician may cancel a surgical or diagnostic procedure subsequent to the patient’s surgical preparation (including sedation when provided, and being taken to the room where the procedure is to be performed), but prior to the administration of anesthesia (local, regional block(s) or general). Under these circumstances, the intended service that is prepared for but canceled can be reported by its usual procedure number and the addition of modifier 73. Note: The elective cancellation of a service prior to the administration of anesthesia and/or surgical preparation of the patient should not be reported. For physician reporting of a discontinued procedure, see modifier 53.

78 Unplanned Return to the Operating/Procedure Room by the Same Physician or Other Qualified Health Care Professional Following Initial Procedure for a Related Procedure During the Postoperative Period: It may be necessary to indicate that another procedure was performed during the postoperative period of the initial procedure (unplanned procedure following initial procedure). When this procedure is related to the first, and requires the use of an operating/procedure room, it may be reported by adding modifier 78 to the related procedure. (For repeat procedures, see modifier 76.)

E1 Upper left, eyelid

E2 Lower left, eyelid

E3 Upper Right, eyelid

E4 Lower right, eyelid

F1 Left hand, second digit

F2 Left hand, third digit

F3 Left hand, fourth digit

F4 Left hand, fifth digit

F5 Right hand, thumb

F6 Right hand, second digit

F7 Right hand, third digit

F8 Right hand, fourth digit

F9 Right hand, fifth digit

FA Left hand, thumb

GG Performance and payment of a screening mammogram and diagnostic mammogram on the same patient, same day

GH Diagnostic mammogram converted from screening mammogram on same day

LC Left circumflex coronary artery

LD Left anterior descending coronary artery

LM Left main coronary artery

LT Left side (used to identify procedures performed on the left side of the body)

QM Ambulance service provided under arrangement by a provider of services

QN Ambulance service furnished directly by a provider of services

RC Right coronary artery

RI Ramus intermedius coronary artery RT Right side (used to identify procedures performed on the right side of the body)

T1 Left foot, second digit

T2 Left foot, third digit

T3 Left foot fourth digit

T4 Left foot, fifth digit

T5 Right foot, great toe

T6 Right foot, second digit

T7 Right foot, third digit

T8 Right foot, fourth digit

T9 Right foot, fifth digit

TA Left foot, great toe

4.24 Multiple Procedures for Professional and Facility Procedures

4.24.1 Multiple Procedure Reimbursement Rules. More than 1 procedure performed during the same operative session at the same operative site are reimbursed as follows:

4.24.1.1 100% of the allowable fee for the primary procedure

4.24.1.2 100% of the allowable fee for the second and subsequent procedures

4.24.2 Bilateral Procedure Reimbursement Rule

4.24.2.1 Physicians and staff are sometimes confused by the definition of bilateral. Bilateral procedures are identical procedures (i.e., use the same CPT code) performed on the same anatomic site but on opposite sides of the body.

4.24.2.2 There will be no reduction to the procedures billed with the modifier 50, RT or LT.

4.24.3 Multiple Procedure Billing Rules for Professional and Facility Procedures

4.24.3.1 The primary procedure, which is defined as the procedure with the highest RVU, must be billed with the applicable CPT code.

4.24.3.2 The second or lesser or additional procedure(s) may be billed by adding modifier 51 to the codes unless the procedure(s) is exempt from modifier 51, or 59, or qualifies as an add-on code.

4.25 Repair of Wounds

4.25.1 Definitions

The following words and terms, when used in 19 DE Admin. Code 1341 and 1342 PART A-PART G, have the following meaning.

“Simple repair” means repair of superficial wounds involving primarily epidermis and dermis or subcutaneous tissues without significant involvement of deeper structures and simple 1 layer closure/suturing. This includes local anesthesia and chemical or electro cauterization of wounds not closed.

“Intermediate repair” means repair of wounds that requires layered closure of 1 or more of the subcutaneous tissues and superficial (non-muscle) fascia, in addition to the skin (epidermal and dermal) closure. Single-layer closure of heavily contaminated wounds that require extensive cleaning or removal of particulate matter also constitutes intermediate repair.

“Complex repair” means repair of wounds requiring more than layered closure, scar revision, debridement (e.g., traumatic lacerations or avulsions), extensive undermining, stents or retention sutures. It may include creation of the defect and necessary preparation for repairs or the debridement and repair of complicated lacerations or avulsions.

4.25.2 Reporting. The following instructions are for reporting services at the time of the wound repair:

4.25.2.1 The repaired wounds should be measured and recorded in centimeters, whether curved, angular, or stellate.

4.25.2.2 When multiple wounds are repaired, add together the lengths of those in the same classification as defined in subsection 4.25.1 and anatomical grouping and report as a single item. When more than 1 classification of wound is repaired, list the more complicated as the primary procedure and the less complicated as the secondary procedure using modifier 51.

4.25.2.3 Debridement is considered a separate procedure only when gross contamination requires prolonged cleansing, when appreciable amounts of devitalized or contaminated tissue are removed, or when debridement is carried out separately without immediate primary closure (extensive debridement of soft tissue and/or bone).

4.25.2.4 Report involvement of nerves, blood vessels, and tendons under the appropriate system (nervous, musculoskeletal, etc.) for repair. The repair of these wounds is included in the fee for the primary procedure unless it qualifies as a complex wound, in which case modifier 51 applies.

4.25.2.5 Simple ligation of vessels in an open wound is considered part of any wound closure, as is simple exploration of nerves, blood vessels, or tendons.

4.25.2.6 Adjacent tissue transfers, flaps and grafts include such procedures as Z-plasty, W- plasty, V-4-plasty or rotation flaps. Reimbursement is based on the size of the defect. Closing the donor site with a skin graft is considered an additional procedure and will be reimbursed in addition to the primary procedure. Excision of a lesion prior to repair by adjacent tissue transfer is considered “bundled” into the tissue transfer procedure and is not reimbursed separately.

4.25.2.7 Wound exploration codes should not be billed with codes that specifically describe a repair to major structure or major vessel. The specific repair code supersedes the use of a wound exploration code.

4.26 Musculoskeletal System

4.26.1 Casting and Strapping. This applies to severe muscle sprains or strains that require casting or strapping.

4.26.1.1 Initial (new patient) treatment for soft tissue injuries must be billed under the appropriate office visit code.

4.26.1.2 When a cast or strapping is applied during an initial visit, supplies and materials (e.g., stockinet, plaster, fiberglass, ace bandages) may be itemized and billed separately using the appropriate HCPCS Level II code.

4.26.1.3 When initial casting and/or strapping is applied for the first time during an established patient visit, reimbursement may be made for the itemized supplies and materials in addition to the appropriate established patient visit.

4.26.1.4 Replacement casts or strapping provided during a follow-up visit (established patient) includes reimbursement for the replacement service as well as the removal of casts, splints, or strapping. If a cast is damaged or destroyed and must be replaced, the supplies and the office visit are reimbursed. Office notes should substantiate medical necessity of the visit. Cast supplies may be billed using the appropriate HCPCS Level II code and reimbursed separately.

4.26.2 Fracture Care

4.26.2.1 Fracture care is a global service. It includes the examination, restoration or stabilization of the fracture, application of the first cast, and cast removal. Casting material is not considered part of the global package and may be reimbursed separately. It is inappropriate to bill an office visit since the reason for the encounter is for fracture care. However, if the patient requires surgical intervention, additional reimbursement can be made for the appropriate E/M code to properly evaluate the patient for surgery. Use modifier 57 with the E/M code.

4.26.2.2 Reimbursement for fracture care includes the application and removal of the first cast or traction device only. Replacement casting during the period of follow-up care is reimbursed separately.

4.26.2.3 The phrase “with manipulation” describes reduction of a fracture.

4.26.2.4 Re-reduction of a fracture performed by the primary physician may be identified by the addition of modifier 76 to the usual procedure code to indicate “repeat procedure” by the same physician.

4.26.2.5 The term “complicated” appears in some musculoskeletal code descriptions. It implies an infection occurred or the surgery took longer than usual. Be sure the medical record documentation supports the “complicated” descriptor to justify reimbursement.

4.26.3 Arthroscopy. Note: Surgical arthroscopy always includes a diagnostic arthroscopy. Only in the most unusual case is an increased fee justified because of increased complexity of the intra-articular surgery performed.

4.26.3.1 Diagnostic arthroscopy should be billed at 50% when followed by open surgery.

4.26.3.2 Diagnostic arthroscopy is not billed when followed by arthroscopic surgery.

4.26.3.3 If there are only minor findings that do not confirm a significant preoperative diagnosis, the procedure should be billed as a diagnostic arthroscopy.

4.26.4 Arthrodesis Procedures. Many revisions have occurred in CPT coding for arthrodesis procedures. References to bone grafting and fixation are now procedures which are listed and reimbursed separately from the arthrodesis codes. To help alleviate any misunderstanding about when to code a discectomy in addition to an arthrodesis, the statement “including minimal discectomy” to prepare interspace has been added to the anterior interbody technique. If the disk is removed for decompression of the spinal cord, the decompression should be coded and reimbursed separately.

4.26.5 External Spinal Stimulators Post Fusion. The following criteria are established for the medically accepted standard of care when determining applicability for the use of an external spinal stimulator.

4.26.5.1 Patient has had a previously failed spinal fusion; and/or

4.26.5.2 Patient is scheduled for revision or repair of pseudo arthrosis; and/or

4.26.5.3 The patient smokes greater than a pack of cigarettes per day and is scheduled for spinal fusion;

4.26.5.4 The patient is metabolically in poor health, with other medical comorbidities such as diabetes, Rheumatoid arthritis, lupus or other illnesses requiring oral steroids or cytotoxic medications.

4.26.5.5 Pre certification is required for use of the external spinal stimulator if the planned use falls outside the above indications.

4.26.6 Carpal Tunnel Release. The following intra operative services are included in the global service package for carpal tunnel release and should not be reported separately and do not warrant additional reimbursement:

4.26.6.1 Surgical approach;

4.26.6.2 Isolation of neurovascular structures;

4.26.6.3 Video imaging;

4.26.6.4 Stimulation of nerves for identification;

4.26.6.5 Application of dressing, splint, or cast;

4.26.6.6 Tenolysis of flexor tendons;

4.26.6.7 Flexor tenosynovectomy;

4.26.6.8 Excision of lipoma of carpal canal;

4.26.6.9 Division of transverse carpal ligament;

4.26.6.10 Use of endoscopic equipment;

4.26.6.11 Placement and removal of surgical drains or suction device;

4.26.6.12 Closure of wound.

4.27 Radiology

4.27.1 Payment Ground Rules for Diagnostic and Therapeutic Radiological Services

4.27.1.1 General Guidelines

4.27.1.1.1 The maximum allowable reimbursement for radiology will be determined pursuant to 19 Del.C. §2322B. If an employer or insurance carrier contracts with a provider for the purpose of providing services under the Act, the rate negotiated in such contract shall prevail.

4.27.1.1.2 Whenever the health care payment system does not address a procedure, treatment or service in the schedule, the amount of reimbursement shall be a percentage reduction from 85% of the actual charge.

4.27.1.1.3 The payment system will be adjusted yearly pursuant to 19 Del.C. §2322B(5).

4.27.1.1.4 The maximum allowed rate column for a radiological procedure includes the professional component (PC) and the technical component (TC). Under no circumstances shall the maximum allowed rate for a procedure be more than the combined value of the TC and the PC on the professional fee schedule. This value is applicable in any situation in which a single charge is made to include both professional services and the technical cost of providing that service when rendered by the physician or clinic. Identification of a procedure without modifier 26 or TC indicates that the charge includes both the “professional” and the “technical” components.

4.27.1.1.5 The PC fee amount represents the value of the professional radiological services of the physician. This component is applicable in any situation in which the physician submits a bill for these professional services only. It does not include the cost of personnel, materials, space, equipment, or other facilities.

4.27.1.1.6 A written report, signed by the interpreting physician, is considered an integral part of a radiological procedure or interpretation and shall not be reimbursed separately. To identify a charge for the PC, use the five-digit CPT procedure code followed by modifier 26. If a “0” percent amount appears in the PC column, the procedure is assumed to be purely technical in nature and no PC charge will be allowed.

4.27.1.1.7 The TC includes the charges for personnel, materials, including ionic contrast media and drugs, film or xerography, space, equipment, and other facility resources when charged by the facility. The technical component maximum allowable reimbursement (MAR) excludes radioisotope cost. To identify a charge for the TC only, use the procedure code followed by modifier TC.

4.27.1.1.8 A complete examination includes all of the necessary views for optimal examination of the body part for the suspected condition. If the reimbursement of multiple single views exceeds the cost of a complete examination, reimbursement shall be based on the complete examination value.

4.27.1.2 Definitions and items unique to radiology are listed below:

4.27.1.2.1 Noninvasive/interventional diagnostic imaging includes standard radiographs, single or multiple views, contrast studies, computerized tomography, and magnetic resonance imaging. In the event that radiographs have to be repeated in the course of a radiographic encounter due to substandard quality, only 1 unit of service for the code can be billed.

4.27.1.2.2 Interventional/invasive diagnostic imaging. When a contrast can be administered orally (upper GI) or rectally (barium enema), the administration is included as part of the procedure and no administration service is billed. When contrast material is parenterally administered, whether the timing of the injection has to correlate with the procedure or not (e.g., IVP, CT scans, gadolinium), the administration and the injection (e.g., CPT codes 36000, 36406, 36410, and 90772–90774) are included in the contrast studies.

4.27.1.3 Subject Listings. Subject listings apply when radiological services are performed by or under the responsible supervision of a physician.

4.27.1.3.1 Supervision and Interpretation. When 2 physicians perform a procedure, the radiological portion of the procedure is designated as “radiological supervision and interpretation.” When a physician performs both the procedure and provides imaging supervision and interpretation, a combination of CPT procedure codes outside the 70000 series and imaging supervision and interpretation codes are to be used. Note: The Radiological Supervision and Interpretation codes are not applicable to the radiation oncology subsection.

4.27.1.3.2 Review of Diagnostic Studies. No separate charge is warranted for prior studies reviewed in conjunction with a visit, consultation, record review, or other evaluation by the medical practitioner or other medical personnel; neither the professional component value modifier 26 nor the radiological consultation CPT code 76140 is reimbursable. The review of diagnostic tests is included in the evaluation and management codes.

4.27.1.3.3 Written Report(s). A written report, signed by the interpreting physician, should be considered an integral part of a radiological procedure or interpretation.

4.27.1.3.4 Unbundling of “Entrance” Fees. Unbundling of fees to free standing diagnostic radiology centers will not be allowed. Any entrance fees billed in addition to the global or testing procedure code will not be reimbursed.

4.27.1.3.5 Injection Procedure

4.27.1.3.5.1 Fees include all usual pre- and post-injection care specifically related to the injection procedure, necessary local anesthesia, placement of needle or catheter, and injection of contrast media with or without auto power injection. The phrase “with contrast” used in the codes for procedures performed using contrast for imaging enhancement represents contrast material administered intravascularly, intra-articularly, or intrathecally.

4.27.1.3.5.2 For intra-articular injection, use the appropriate joint injection code. If radiographic arthrography is performed, also use the arthrography supervision and interpretation code for the appropriate joint (which includes fluoroscopy). If CT or MR arthrography is performed without radiographic arthrography, use the appropriate joint injection code, the appropriate CT or MR code (“with contrast” or “without followed by contrast”), and the appropriate imaging guidance code for needle placement for contrast injection.

4.27.1.3.5.3 For spine examinations using computed tomography, magnetic resonance imaging, magnetic resonance angiography, “with contrast” includes intrathecal or intravascular injection. For intrathecal injection, use also CPT code 61055 or 62284. Injection intravascular (IV) contrast material is part of the “with contrast” CT, CTA, MRI, MRA procedure and shall not be reimbursed separately. When introducing additional materials through the same puncture site, reimbursement shall be allowed for the materials only. Title 19 Section 2322B(5) will apply to such charges. Oral and/or rectal contrast administration alone does not qualify as a study “with contrast.”

4.27.2 Payment Modifiers for Diagnostic and Therapeutic Radiological Services

4.27.2.1 A modifier indicates a service or procedure performed has been altered by some specific circumstance but has not changed its definition or code. The modifying circumstance shall be identified by the appropriate modifier following the procedure code. When 2 modifiers are applicable to a single code, indicate each modifier on the bill. If more than 1 modifier is used, place the “Multiple Modifiers” modifier 99 immediately after the procedure code. This indicates that 1 or more additional modifier codes will follow.

4.27.2.2 Only certain modifiers in each of the categories (Evaluation and Management Services, Anesthesia, Surgery, Pathology/Laboratory, Radiology, General Medicine, and Physical Medicine) will be recognized for reimbursement purposes. The modifiers listed in subsection 4.27.2.3 may differ from those published by the American Medical Association. Medical providers submitting workers’ compensation billing shall use only the modifiers set out in the fee schedule.

4.27.2.3 The following modifiers will be recognized for reimbursement by the fee schedule for diagnostic and therapeutic radiology services codes:

22 Increased Procedural Services: When the work required to provide a service is substantially greater than typically required, it may be identified by adding modifier 22 to the usual procedure code. Documentation must support the substantial additional work and the reason for the additional work (i.e., increased intensity, time, technical difficulty of procedure, severity of patient’s condition, and physical and mental effort required). Note: This modifier should not be appended to an E/M service.

State Note: There will be no reductions to the procedures billed with the modifier 50.

State Note: Procedures performed bilaterally are reported as two line items, and modifier 50 is not appended. These codes are identified with CPT specific language at the code or subsection level. Modifiers RT and LT may be appended as appropriate.

53 Discontinued Procedure: Under certain circumstances, the physician or other qualified health care professional may elect to terminate a surgical or diagnostic procedure. Due to extenuating circumstances or those that threaten the well-being of the patient, it may be necessary to indicate that a surgical or diagnostic procedure was started but discontinued. This circumstance may be reported by adding modifier 53 to the code reported by the individual for the discontinued procedure. Note: This modifier is not used to report the elective cancellation of a procedure prior to the patient’s anesthesia induction and/or surgical preparation in the operating suite. For outpatient hospital/ambulatory surgery center (ASC) reporting of a previously scheduled procedure/service that is partially reduced or canceled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifier 73 and 74 (see modifiers approved for ASC hospital outpatient use (of CPT)).

59 Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision or excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate, it should be used rather than modifier 59. Only if no more descriptive modifier available, and use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25.

State Note: There will be no reductions to procedures bills with modifier 59.

LT Left Side: Used to identify procedures performed on the left side of the body.

RT Right Side: Used to identify procedures performed on the right side of the body.

TC Technical Component Only: Certain procedures are a combination of a physician component and a technical component. When the technical component is reported separately by the physician or clinic, the service may be identified by adding modifier TC to the usual procedure number.

4.28 Laboratory and Pathology

4.28.1 Payment Ground Rules for Pathology and Laboratory Services

4.28.1.1 General Guidelines

4.28.1.1.1 Laboratory and Pathology health care treatment and procedures shall be paid pursuant to 19 Del.C. §2322B(3). If an employer or insurance carrier contracts with a provider for the purpose of providing services under the Act, the rate negotiated in such contract shall prevail.

4.28.1.1.2 Whenever the health care payment system does not set a specific fee for a procedure, treatment or service in the schedule, the amount of reimbursement shall be a percentage reduction from 85% of the actual charge.

4.28.1.1.3 The payment system will be adjusted yearly pursuant to 19 Del.C. §2322B(5).

4.28.1.1.4 Physicians should include CPT codes for specific performance of diagnostic tests/studies for which specific CPT codes are available. Items used by all physicians in reporting their services are presented in the introduction. Definitions and explanations unique to pathology and laboratory are included below.

4.28.1.1.5 The maximum number of times that drug screening, testing, or the like, may occur is 4 samples per year absent written pre-authorization by the employer or its insurance carrier. If the point of care testing is not consistent with that which the prescriber expected based on the drug or medicine prescribed, then, and only then, will confirmatory testing be permitted and subject to payment. A maximum charge of $100 for point of care testing, or the provider's actual charge, whichever is less, shall be permitted, regardless of the number of drugs being screened for and/or the number of dip sticks, testing instruments, materials, or the like, used.

4.28.1.2 Services in Pathology & Laboratory. Services are those provided by the pathologist or by the technologists under responsible supervision of a physician. The fees listed in this section include recording of the specimen, performance of the test, and reporting of the result. The fees do not include specimen collection, specimen transfer, or individual patient administrative services.

4.28.1.3 Review of Diagnostic Studies. The medical practitioner or other medical personnel warrant no separate charge for the review of prior studies in conjunction with a visit, consultation, record review, or other evaluation. Neither the professional component modifier 26 nor the pathology consultation CPT codes 80500 and 80502 are reimbursable under this circumstance. The review of diagnostic tests is included in the evaluation and management (E/M) codes.

4.28.1.4 Referral Laboratory Tests. The laboratory tests and services listed in this section when performed by other than the billing physician shall be billed at the value charged by the referral (outside) laboratory under the applicable procedure number with the appropriate modifier 90; the name of the referral laboratory and the charge made by that laboratory should also be identified.

4.28.1.5 Collection and Handling Procedures. Fees assigned to each test represent only the cost of performing the individual test, whether it is manual or automated (mechanized). The collection, handling, and patient administrative services have been assigned separate fees and separate code numbers.

4.28.1.5.1 Report a collection, handling, and patient administrative service separately, where applicable. For venipuncture, see CPT code 36415. For collection of capillary blood specimen, see CPT code 36416. For collection of blood specimen from a completely implantable venous access device, see CPT code 36591. For handling, see CPT codes 99000 and 99001.

4.28.1.5.2 Only the physician or laboratory drawing the blood or obtaining the specimen is entitled to a collection and handling fee.

4.28.1.5.3 Relative value units for specimen collection, handling, and patient administrative service are assigned in relation to the complexity of the process.

4.28.1.5.4 Although there is no billing for the test itself, the physician or laboratory performing the service can report a collection and handling charge. The test ordered and the name of the testing facility should be indicated.

4.28.1.5.5 When collection and handling are performed at the testing facility (laboratory), the laboratory may include separate charges for these services.

4.28.1.6 Professional Component. The maximum allowable reimbursement (MAR) includes the professional component (PC) plus the technical component (TC) when performed by the physician or clinic. This value is applicable in any situation in which a single charge is made to include both professional services and the technical cost of providing that service.

4.28.1.6.1 Identification of a procedure by the 5-digit CPT code without modifier 26 or TC indicates that the charge includes both the professional and technical components. The professional component percentage represents the value of the professional pathology services of the physician. This includes: examination of the injured employee, when indicated performance and/or supervision of the procedure, interpretation, and written report of the laboratory procedure, and consultation with the authorized treating physician. This component is applicable in any situation in which the physician submits a bill for these professional services only. It does not include the cost of personnel, materials, space, equipment, or other facilities. To identify the charge for the professional component, use the 5-digit CPT code followed by modifier 26.

4.28.1.6.2 The technical component includes the charges for personnel, materials, space, equipment, and other facilities, and should be reported using modifier TC when billed by physician, clinic or lab. In no instance will the sum of the charges for the professional and technical components of a service be greater than the value of the total service listed on the professional fee schedule.

4.28.1.7 Separate or Multiple Procedures. It is appropriate to designate more than 1 procedure that is rendered at the same session by separate entries.

4.28.1.8 Unusual Service or Procedure. Services that may necessitate skills and time of the physician over and above that usually required should be substantiated by special report detailed in subsection 4.28.1.10.

4.28.1.9 Unlisted Service or Procedure. When an unlisted service or procedure is provided, the values used should be substantiated by special report detailed in subsection 4.28.1.10. Identify by name or description.

4.28.1.10 Special Report. A service that is rarely provided, unusual, variable, or new may require a special report in determining medical appropriateness of the service. Pertinent information should include an adequate definition or description of the nature, extent, and need for the procedure; and the time, effort, and equipment necessary to provide the service. Additional items that may be included are:

4.28.1.10.1 Complexity of symptoms;

4.28.1.10.2 Final diagnosis;

4.28.1.10.3 Pertinent physical findings;

4.28.1.10.4 Diagnostic and therapeutic procedures;

4.28.1.10.5 Concurrent problems;

4.28.1.10.6 Follow-up care.

4.28.2 Payment Modifiers for Pathology and Laboratory Services

4.28.2.1 A modifier indicates a service or procedure performed has been altered by some specific circumstance but has not changed its definition or code. The modifying circumstance shall be identified by use of the appropriate modifier following the procedure code. When 2 modifiers are applicable to a single code, indicate each modifier on the bill. If more than 1 modifier is used, place the “Multiple Modifiers” code 99 immediately after the procedure code. This indicates that 1 or more additional modifier codes will follow. Only certain modifiers in each of the categories (Evaluation and Management Services, Anesthesia, Surgery, Pathology/Laboratory, Radiology, General Medicine, and Physical Medicine) will be recognized for reimbursement purposes.

4.28.2.2 The modifiers listed below may differ from those published by the American Medical Association. Providers submitting workers’ compensation billing shall use only the modifiers set out in the fee schedule.

4.28.2.3 The following modifiers will be recognized for reimbursement by the fee schedule for pathology and laboratory codes:

22 Increased Procedural Services: When the work required to provide a service is substantially greater than typically required, it may be identified by adding modifier 22 to the usual procedure code. Documentation must support the substantial additional work and the reason for the additional work (i.e., increased intensity, time, technical difficulty of procedure, severity of patient’s condition, and physical and mental effort required). Note: This modifier should not be appended to an E/M service.

53 Discontinued Procedure: Under certain circumstances, the physician or other qualified health care professional may elect to terminate a surgical or diagnostic procedure. Due to extenuating circumstances or those that threaten the well-being of the patient, it may be necessary to indicate that a surgical or diagnostic procedure was started but discontinued. This circumstance may be reported by adding modifier 53 to the code reported by the individual for the discontinued procedure. Note: This modifier is not used to report the elective cancellation of a procedure prior to the patient’s anesthesia induction and/or surgical preparation in the operating suite. For outpatient hospital/ambulatory surgery center (ASC) reporting of a previously scheduled procedure/service that is partially reduced or canceled as a result of extenuating circumstances or those that threaten the well-being of the patient prior to or after administration of anesthesia, see modifier 73 and 74 (see modifiers approved for ASC hospital outpatient use (of CPT)).

59 Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision or excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate, it should be used rather than modifier 59. Only if no more descriptive modifier is available, and the use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25.

92 Alternative Laboratory Platform Testing: When laboratory testing is being performed using a kit or transportable instrument that wholly or in part consists of a single use, disposable analytical chamber, the service may be identified by adding modifier 92 to the usual laboratory procedure code (HIV testing 86701-86703 and 87389). The test does not require permanent dedicated space; hence by its design it may be hand carried or transported to the vicinity of the patient for immediate testing at that site, although location of the testing is not in itself determinative of the use of this modifier.

TC Technical Component Only: Certain procedures are a combination of a physician component and a technical component when performed by physician or clinic. When the technical component is reported separately, the service may be identified by adding modifier TC to the usual procedure number.

4.29 Physical Medicine

4.29.1 Payment Ground Rules for Physical Medicine Services

4.29.1.1 General Guidelines

4.29.1.1.1 Protocols used by physicians in reporting their services are generally described below. Some of the commonalties with other subsections may be repeated here. If no appropriate code is found for medical services performed by a medical provider, use the appropriate unlisted code (e.g., CPT code 99199), and adequately describe the service provided. Chiropractic and physical therapy service reimbursements are explained in this section.

4.29.1.1.2 Supplies and materials provided by the medical provider (e.g., sterile trays), over and above that usually provided during an office visit, or other services rendered, may be charged for separately and coded separately. A physician office visit code may be charged in addition to the code for modalities/procedures only if the accompanying documentation clearly indicates that the physician or medical provider actually examined the worker during the office visit.

4.29.1.2 Initial Evaluation and Re-evaluation by Physical Therapists or Occupational Therapists

4.29.1.2.1 CPT codes 97161-97163, Physical therapy evaluation, is a one-time-only charge per episode of care. CPT code 97164, Physical therapy re-evaluation, may be charged at the discretion of the clinician based on patient presentation at a particular visit. The use of the 97164 code shall not exceed once per month unless unusual and/or unforeseen circumstances exist.

4.29.1.2.2 CPT codes 97165-97167, Occupational therapy evaluation, is a one-time-only charge per episode of care. CPT code 97168, Occupational therapy re-evaluation, may be charged at the discretion of the treating clinician based on patient presentation at a particular visit. The use of the 97168 code shall not exceed once per month unless unusual and/or unforeseen circumstances exist.

4.29.1.3 Exam Visits to Occupational Therapists or Physical Therapists. Services performed by a physical therapist and/or occupational therapist shall be performed in conjunction with the authorized treating physician detailing the type, frequency, and duration of therapy to be provided. Only physical therapists’ and/or occupational therapists’ procedures and services are billable.

4.29.1.4 Manipulation Codes

4.29.1.4.1 Manipulation performed by physical therapists is billed under the 97140 (manual therapy) CPT code and there is no special modifier necessitated with the use of the 97140 code.

4.29.1.4.2 Special codes are designated for use by chiropractors and osteopaths to bill for manipulation services. When billing for manipulation services, licensed chiropractors may bill using CPT codes 98940–98943. Licensed osteopaths may bill using CPT codes 98925–98929. The chiropractic manipulative treatment codes include a pre manipulation patient assessment. Additional evaluation and management (E/M) services may be reported separately using modifier 25, if the injured employee’s condition requires a significant, separately identifiable E/M service, which is above and beyond the usual pre service and post service work associated with the procedure.

4.29.1.5 Fabrication of Orthotics. Orthotics must be billed separately for professional fitting and supplies. CPT code 97760 must be used for a medical provider or therapist to fabricate orthotics. Custom-made orthotics and prosthetics are exempt from the medical supplies reimbursement formula; however, 19 Del.C. §2322B(5) will apply or by agreement of the parties. Additional medical supplies may not exceed medical supplies reimbursement formula.

4.29.1.6 TENS Units. TENS units (transcutaneous electrical nerve stimulation) must be prescribed by the authorized treating physician. Rental equipment is subject to 19 Del.C. §2322B(5) or by agreement. Rental equipment is exempt from the reimbursement formula. The purchase of such units will be subject to the appropriate durable/medical supplies reimbursement explained in that section of these fee schedule instructions and guidelines.

4.29.1.7 Hot/Cold Packs shall be reimbursed per the fee schedule and will adjust each year, pursuant to 19 Del.C. §§2322B(5).

4.29.2 Payment Modifiers for Physical Medicine Services

4.29.2.1 A modifier indicates a service or procedure performed has been altered by some specific circumstance but has not changed its definition or code. The modifying circumstance shall be identified by the appropriate modifier following the procedure code. When 2 modifiers are applicable to a single code, indicate each modifier on the bill. If more than 1 modifier is used, place the “Multiple Modifiers” modifier 99 immediately after the procedure code. This indicates that 1 or more additional modifier codes will follow. Only certain modifiers in each of the categories (Evaluation and Management, Anesthesia, Surgery, Pathology/Laboratory, Radiology, General Medicine, and Physical Medicine) will be recognized for reimbursement purposes.

4.29.2.2 The modifiers listed in subsection 4.29.2.3 may differ from those published by the American Medical Association. Medical providers submitting workers’ compensation billing shall use only the modifiers set out in the fee schedule.

4.29.2.3 The following modifiers will be recognized for reimbursement by the fee schedule for physical medicine services codes:

22 Increased Procedural Services: When the work required to provide a service is substantially greater than typically required, it may be identified by adding modifier 22 to the usual procedure code. Documentation must support the substantial additional work and the reason for the additional work (i.e., increased intensity, time, technical difficulty of procedure, severity of patient’s condition, and physical and mental effort required). Note: This modifier should not be appended to an E/M service.

24 Unrelated Evaluation and Management Service by the Same Physician or Other Qualified Health Care Professional During a Postoperative Period: The physician or other qualified health care professional may need to indicate that an E/M service was performed during a postoperative period for a reason(s) unrelated to the original procedure. This circumstance may be reported by adding modifier 24 to the appropriate level of E/M service.

59 Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision or excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate, it should be used rather than modifier 59. Only if no more descriptive modifier is available, and the use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25.

4.30 Durable Medical Equipment and Supplies

4.30.1 Whenever the health care payment system does not address a procedure, treatment or service in the schedule, the amount of reimbursement shall be a percentage reduction from 85% of the actual charge.

4.30.2 The payment system will be adjusted yearly pursuant to 19 Del.C. §2322B(5).

4.30.3 Certain supplies and materials are to be provided by the physician that are usually included with the visit or other services performed. Fees covering ordinary dressings, materials or drugs used in diagnosis and treatment shall not be charged for separately, but shall be included in the amount for the office or hospital treatment. If the record of the case shows that it was necessary to use an extraordinary amount of dressing material or drugs, these will be paid for using – HCPCS Level II Codes.

History

11 DE Reg. 920 (01/01/08)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1100 (06/01/16)
27 DE Reg. 614 (02/01/24)
13 DE Reg. 1558 (06/01/10)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
14 DE Reg. 1375 (06/01/11)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1761 (06/01/12)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1167 (02/01/12)
27 DE Reg. 614 (02/01/24)
11 DE Reg. 920 (01/01/08)
11 DE Reg. 1661 (06/01/08)
12 DE Reg. 67 (07/01/08)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 365 (09/01/11)
15 DE Reg. 1167 (02/01/12)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)

19 Del. Admin. Code § 1341-5.0 Utilization Review

5.1 Pursuant to 19 Del.C. §2322F(j), the Department of Labor has developed a utilization review program with the intent of providing reference for employers, insurance carriers, and health care providers for evaluation of health care and charges. The intended purpose of utilization review services is to provide prompt resolution of issues related to treatment and/or compliance with the health care payment system or practice guidelines for those claims which have been acknowledged to be compensable, without the employer or its insurance carrier obtaining legal representation, or incurring the costs associated with legal involvement in the utilization review process.

5.2 An employer or insurance carrier may engage in utilization review to evaluate the quality, reasonableness and/or necessity of proposed or provided health care services for acknowledged compensable claims. Any person conducting a utilization review program for workers’ compensation shall be required to contract with the Office of Workers’ Compensation once every 2 years and certify compliance with Workers’ Compensation Utilization Management Standards or Health Utilization Management Standards of Utilization Review Accreditation Council (“URAC”) sufficient to achieve URAC accreditation or submit evidence of accreditation by URAC.

5.3 At this time, Utilization Review is limited to health care recommendations subject to practice guidelines developed by the Workers’ Compensation Oversight Panel.

5.4 An employer or insurance carrier may request utilization review by complying with all the terms and conditions set forth on the forms attached hereto. Upon completion and submission of the forms, information package and medical records package by the employer or insurance carrier, the designated utilization review company will review treatment to determine if it is in compliance with the practice guidelines developed by the Workers’ Compensation Oversight Panel and adopted and implemented by the Department of Labor. (See Appendix A)

5.4.1 The utilization review company shall be randomly selected by the Department of Labor. The utilization review company first assigned to the case will remain with that case throughout its duration. The Department of Labor will collect all documentation required to be submitted pursuant to the utilization review process and send such documentation for review to the utilization review company.

5.4.2 If the claim is denied by an employer or insurance carrier for non-compliance with any applicable Practice Guideline, only the first bill for such treatment, and not all subsequent bills for the same service, need be denied and referred to utilization review.

5.4.4 In the instance of a compensable claim in which open surgery is recommended by the health care provider and stated by the provider to be within the applicable Practice Guideline, the following procedure may be followed by the operating surgeon to facilitate resolution of payment for such treatment:

5.4.4.1 The operating surgeon must specify the particular surgery to be performed and must certify in writing that:

5.4.4.1.1 The surgery is causally related to the work accident; and

5.4.4.1.2 The surgery is within the Practice Guideline, with specific reference to the Practice Guideline provision relied upon.

5.4.4.2 The information set forth above must be set forth by the operating surgeon in a separate written report, not through a copy of office notes and/or records. The employer/carrier must within 30 days from receipt of the above either accept/pre-authorize or deny such treatment. If the treatment is denied as non-compliant with the Practice Guidelines, it must be referred to Utilization Review within 15 days of date of denial in accordance with §2322F(h)(j). If the treatment is denied as not causally related to the compensable work accident, the claimant may file a Petition with the Industrial Accident Board to determine whether the treatment is compensable. If the employer/carrier neither accepts/pre-authorizes nor denies the treatment within the 30-day period referenced above, then the treatment will be deemed compensable if performed.

5.4.5 All past, prospective and concurrent health care decisions must be reviewed and a Utilization Review determination made no later than 3 working days from receipt of the aforementioned information by the company performing the review, for emergency care, but no later than 15 calendar days from receipt of the aforementioned information by the company performing the review.

5.5 The decision of the utilization review company shall be forwarded by the Department of Labor, by Certified Mail, Return Receipt Requested, to the claimant, the claimant’s attorney of record, the health care provider in question, and the employer or its insurance carrier.

5.5.1 If a party disagrees with the findings following utilization review, a petition may be filed with the Industrial Accident Board for de novo review.

5.5.2 If there are no current practice guidelines applicable to the health care provided, a party may file a petition with the Industrial Accident Board seeking a determination of the appropriateness of treatment.

APPENDIX A

DELAWARE DEPARTMENT OF LABOR

MEDICAL UTILIZATION REVIEW PROGRAM

REQUEST FOR UTILIZATION REVIEW

(Pursuant to 19 Del.C. §2322 F(j))

PLEASE TYPE OR CLEARLY PRINT ALL INFORMATION. All information and addresses must be verified as current and accurate.

Date of Request________________________
WC Number(s)_________________________ Date(s) of injury________________________
Nature of Injury/Practice Guideline(s)_________________________________________________
Claimant's Name_________________________________________________________________

Age______ Sex______

Address___________________________________________Tel. No._______________________

City______________________________________________ State_______ Zip______________

Employer_______________________________________________________________________
Party Requesting Review __________________________________________________________

Primary Contact at Party's Office_____________________________________________________

Email Address___________________________________________________________________

Address___________________________________________ Tel. No.______________________

City______________________________________________ State________ Zip______________

Name of Claimant's Attorney _______________________________________________________

Address _______________________________________________________________________

8(a). Health Care Provider to be Reviewed________________________________________________

Specialty (if applicable)____________________________________________________________

Date of first treatment _____________________________________________________________

Address___________________________________________ Tel. No.______________________

City______________________________________________ State_______ Zip_______________

8(b). Health Care Provider to be Reviewed________________________________________________

Specialty (if applicable)____________________________________________________________

Date of first treatment _____________________________________________________________

Address___________________________________________ Tel. No. ______________________

City______________________________________________ State_______ Zip_______________

8(c). Additional Health Care Providers to be reviewed (list name, specialty, address, etc. on a separate sheet)

8(d). Health Care Facility Impacted (e.g. hospital, ambulatory surgery center, etc.) by this retrospective review (list name, address, etc. on a separate sheet)

Treatment to be reviewed: Specify the health care service to be reviewed and the timeframe within which the treatment was or will be rendered.

My signature certifies the following: (a) all names and addresses on this form have been verified as current and accurate; (b) two identical copies of associated medical material are being submitted for review; (c) the bill denial for the treatment subject to this review was sent within 30 days of receiving the provider's bill; and (d) all items listed in the table of contents are in each copy of the medical material.

Print Name of Requester Signature of Requester

COPY THIS FORM OR REPRODUCE EXACTLY IN APPEARANCE AND CONTENT.

SEE INSTRUCTIONS ON BACK

FOR REQUIRED CONTENT, PRESENTATION AND BINDING METHOD

FOR ALL MATERIALS SUBMITTED FOR UTILIZATION REVIEW

In accordance with 19 Del.C. §2322 F(j) and the regulations adopted pursuant thereto, all information and medical records submitted to the Department of Labor, Office of Workers' Compensation must represent all of the facts of this case.

INFORMATION PACKAGE · REQUIRED CONTENT

"Completed and signed Request for Utilization Review Form.

If applicable, a list containing 1) names, addresses, etc. of the health care facilities impacted by this review; and 2) additional health care providers under review.

"Proof of date of issuance of claim denial (so the Department of Labor is able to verify that Utilization Review was requested within 15 days of the date of the claim denial).

MEDICAL RECORDS PACKAGE· REQUIRED CONTENT

Section 1. All reports, notes, etc., from provider being reviewed from the date of injury or the 2 year period immediately preceding the treatment to be reviewed, whichever is shorter, and the time frame within which the treatment to be reviewed was or will be rendered, as submitted to the requesting party.

Section 2. All reports, notes, etc., of other treating providers from the date of injury or the 1 year period immediately preceding the treatment to be reviewed, whichever is shorter, as submitted to the requesting party.

Section 3. All diagnostic test results from the date of injury or the 2 year period immediately preceding the treatment to be reviewed, whichever is shorter, as submitted to the requesting party.

NOTE Do not include copies of any billing statements or comments/instructions directed to the Utilization Review panel. All material must be presented in identified sections; each section's content must be presented in chronological order.

REQUIRED PRESENTATION AND BINDING METHOD FOR ALL SUBMITTED MATERIALS

If submitting via US Mail, courier or overnight mail service:

a. All submitted material must be presented in 1 bound copy.

b. If tabs are used for the sections, they must be positioned to the right side of the document.

Mail or Deliver to: Department of Labor

Office of Workers' Compensation

4425 N. Market St.

Wilmington, DE 19802

302-761-8200

If submitting electronically:

Email to hcpaymentquestions@delaware.gov

History

11 DE Reg. 920 (01/01/08)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1100 (06/01/16)
27 DE Reg. 614 (02/01/24)
13 DE Reg. 1558 (06/01/10)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
14 DE Reg. 1375 (06/01/11)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1761 (06/01/12)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1167 (02/01/12)
27 DE Reg. 614 (02/01/24)
11 DE Reg. 920 (01/01/08)
11 DE Reg. 1661 (06/01/08)
12 DE Reg. 67 (07/01/08)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 365 (09/01/11)
15 DE Reg. 1167 (02/01/12)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)

19 Del. Admin. Code § 1341-6.0 Forms

6.1 The Physician's Report of Workers' Compensation Injury "Progress" Report is to be completed by the health care provider and provided to the employee, the employer and the employer's insurance carrier, if applicable, upon any material change in the employee's physical capability which impacts the employee's return to work status. The "Progress" Report need not be completed by the health care provider upon each and every visit, but rather only in the instance of any material change in the injured employee's physical capability which impacts the employee's return to work status. "Progress" Reports provided in contravention of the above will not be subject to any charge for completion and submission.

6.2 The Physicians Report of Workers' Compensation Injury "Progress"

Report and Instructions (Physicians Form) and complete instructions on completing the form will be available on the Department of Labor web site.

6.3 The Employer's Modified Duty Availability Report and Instructions (Employers' Form) must be completed, pursuant to 19 Del.C. §2322E(d). If the employee has returned to full duty, the employer need not complete the form. The Employers' Form and complete instructions will be available on the Department of Labor web site.

History

11 DE Reg. 920 (01/01/08)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1100 (06/01/16)
27 DE Reg. 614 (02/01/24)
13 DE Reg. 1558 (06/01/10)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
14 DE Reg. 1375 (06/01/11)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1761 (06/01/12)
17 DE Reg. 322 (09/01/13)
18 DE Reg. 577 (01/01/15)
27 DE Reg. 614 (02/01/24)
15 DE Reg. 1167 (02/01/12)
27 DE Reg. 614 (02/01/24)
11 DE Reg. 920 (01/01/08)
11 DE Reg. 1661 (06/01/08)
12 DE Reg. 67 (07/01/08)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1375 (06/01/11)
15 DE Reg. 365 (09/01/11)
15 DE Reg. 1167 (02/01/12)
15 DE Reg. 1761 (06/01/12)
16 DE Reg. 1080 (04/01/13)
17 DE Reg. 322 (09/01/13)
17 DE Reg. 858 (02/01/14)
17 DE Reg. 1085 (05/01/14)
18 DE Reg. 577 (01/01/15)
18 DE Reg. 675 (03/01/15)
18 DE Reg. 787 (04/01/15)
19 DE Reg. 416 (11/01/15)
19 DE Reg. 1100 (06/01/16)
19 DE Reg. 1102 (06/01/16)
27 DE Reg. 614 (02/01/24)

1342 Health Care Practice Guidelines

19 Del. Admin. Code § 1342 Health Care Practice Guidelines

*Note: Effective August 11, 2024, the Workers' Compensation Oversight Panel Health Care Practice Guidelines are located at: https://labor.delaware.gov/divisions/industrial-affairs/workers-comp/hcps/health-care-practice-guidelines/

History

11 DE Reg. 1661 (06/01/08)
12 DE Reg. 67 (07/01/08)
12 DE Reg. 1515 (06/01/09)
13 DE Reg. 1558 (06/01/10)
14 DE Reg. 1381 (06/01/11)
17 DE Reg. 322 (09/01/13)
28 DE Reg. 146 (08/01/24)

2000 Employee Benefits

2001 Group Health Insurance Plan Eligibility and Enrollment Rules

19 Del. Admin. Code § 2001 Group Health Insurance Plan Eligibility and Enrollment Rules

(Effective January 1, 2024)

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-1.0 Authority

1.1 Pursuant to the authority vested in the State Employee Benefits Committee (SEBC) by 29 Del.C. §§5210(4), 9602(b)(4), the SEBC adopts these Eligibility and Enrollment Rules for the State of Delaware Group Health Insurance Plan (“State Plan”). In the event of a conflict between these rules and the Delaware Code, the Delaware Code takes precedence over these rules.

1.2 An Employee, Long Term Disability (LTD) beneficiary, COBRA beneficiary, or pensioner must meet one of the following definitions to be eligible for enrollment or continued enrollment in the State Plan:

1.2.1 A permanent full-time employee (regularly scheduled 30 or more hours per week or 130 or more hours per month);

1.2.2 An elected or appointed official as defined by 29 Del.C. §5201;

1.2.3 A permanent part-time employee (regularly scheduled to work less than 130 hours per month);

1.2.4 A limited term employee (as defined by 19 DE Admin. Code 3001, subsection 11.1);

1.2.5 A pensioner receiving or eligible to receive a pension from the State;

1.2.6 A per diem or contractual employee of the Delaware General Assembly who has been continuously employed for 5 years.

1.2.7 A temporary employee (regularly scheduled 30 or more hours per week or 130 or more hours per month) as defined by 29 Del.C. §5207;

1.2.8 A current or former employee approved for LTD benefits by the Disability Insurance Program Insurance Carrier or the Administrator in response to 29 Del.C. §5253(c)(1);

1.2.9 COBRA beneficiaries eligible for continued enrollment in the State Plan as defined by federal law.

1.3 Those employees who meet the definition outlined in subsections 1.2.1, 1.2.2, 1.2.4, 1.2.5, 1.2.6, and 1.2.8 are considered "regular officers and employees” or “eligible pensioners" as provided by 29 Del.C. §5202 and are to receive State Share contributions. State Share coverage starts on the first of the month following the date of hire.

1.4 Employees receiving Short Term Disability (STD) under 29 Del.C. §5253(b), Workers’ Compensation (WC) under 19 Del.C. Chapter 23 or automobile Personal Injury Protection (PIP) benefits under 21 Del.C. §2118 will be treated as "regular officers and employees" under these rules. Long Term Disability beneficiaries receiving benefits under 29 Del.C. §5253(c) will be treated as "eligible pensioners" under these rules. If any time after Long Term Disability benefits begin, the beneficiary returns to work for the State and meets any of the definitions outlined in subsections 1.2.1, 1.2.2, or 1.2.4, they will be treated as “regular officers and employees” in these regulations.

1.5 Casual and seasonal, board members, students, and substitute teachers are not eligible for the State Plan.

1.6 Newly employed teachers become eligible employees when they start employment not when they sign their contract. Temporary teachers who have completed the prior year’s contract period and are re-hired in September are eligible for coverage, including State Share on the first of the month following the rehire date.

1.7 Pensioners who are enrolled in a Medicare Advantage plan with prescription or a Medicare Part D prescription plan which is not administered by the State of Delaware cannot be enrolled in the State of Delaware’s Special Medicfill Plan and Medicare Part D prescription plan for Medicare eligible retirees, per the Centers for Medicare and Medicaid Services (CMS).

1.8 Enrollment in State plan is not indicative of eligibility to receive State Share contributions.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-2.0 Dependents Eligible to Participate

2.1 Dependents must meet one of the following definitions to be eligible for enrollment in the State Plan:

2.1.1 A regular officer’s or employee's or eligible pensioner’s:

2.1.1.1 Legal spouse or civil union partner (Delaware law does not recognize common law marriage). Ex‑spouses, ex-civil union partners, and ex-step-children may not be enrolled in the State Plan even if a divorce decree, dissolution decree, settlement agreement or other document requires an employee or pensioner to provide coverage for an ex‑spouse, ex-civil union partner, or ex-step-children;

2.1.1.2 IMPORTANT NOTE: Spousal Coordination of Benefits Policy has been in effect since January 1, 1993 and revised January 1, 2023. The policy applies to a spouse who is eligible for health coverage through their own employer or former employer (when spouse is retired). Spouses who work full-time or who are retired and are eligible for health coverage through their current or former employer, but do not enroll under that employer's health plan, may have a reduction in benefits under the State Plan. A new Spousal Coordination of Benefits form must be filled out upon the spouse’s initial enrollment, each year during open enrollment, upon the employee's enrollment in a State Plan administered by the Pension Office as a result of retirement or employment termination due to LTD, or anytime throughout the year the spouse's employment or health insurance status changes. Information on the Spousal Coordination of Benefits Policy, Chart, online form and a Summary Plan Description (SPD) for each health care plan is available on the Statewide Benefit Office’s website at de.gov/statewidebenefits.

2.1.1.3 A child or children under age 26 born to or legally adopted or lawfully placed for adoption by a regular officer’s, or employee or eligible pensioner or a regular officer or employee's or pensioner's legal spouse;

2.1.1.4 A child or children who do not meet the requirements of subsection 2.1.1.3 of this regulation, who is unmarried, under age 19 (age 24 if a full-time student), residing with a regular officer or employee or eligible pensioner in a regular parent child relationship, and who is dependent upon the regular officer or employee or eligible pensioner for at least 50% support, and who would be considered the regular officer's or employee's or pensioner's "dependent" under Section 105(b) of the Internal Revenue Code. A statement of support form must be filled out by the regular officer or employee or eligible pensioner and forwarded to the employee's Benefit Representative or Human Resources Office with the request for coverage together with a copy of the legal guardianship, permanent guardianship or custody order for the dependent child. If the guardianship or custody order has ended due to the child reaching legal adult age, a statement of support will be required. If a natural parent resides in the same household as the insured regular officer or employee or eligible pensioner, it will be deemed that a regular parent-child relationship does not exist unless the regular officer or employee or eligible pensioner has legal guardianship documents or has legally adopted the dependent child.

2.1.1.5 An unmarried dependent child or children who meet the criteria of subsection 2.1.1.3 of this regulation, but who is age 26 or older and incapable of self-support because of a mental or physical disability which existed before the child reached age 26. The child or children must have been covered under employee's contract immediately preceding age 26.

2.1.1.6 An unmarried dependent child or children who meet the criteria of subsection 2.1.1.4 of this regulation, but who is age 19 (age 24 if full-time student) or older and incapable of self-support because of a mental or physical disability which existed before the child reached age 19 (age 24 if full-time student). The child or children must have been covered under employee's contract immediately preceding age 19 (age 24 if full-time student).

2.1.1.7 IMPORTANT NOTE: A Dependent Coordination of Benefits form must be filled out for each enrolled dependent regardless of age, upon enrollment in other health coverage, any time other health coverage changes, or upon request by the Statewide Benefits Office or the State Plan administrator.

2.2 An eligible dependent child or children covered under the health insurance plans of both parents (one of whom must be employed by a group not participating in the State Plan) will be primary to the parent's plan whose birthday is the first to occur during the calendar year or in response to applicable Court Order. In the event the parents’ birth dates are the same, the dependent child will be primary to the parent with the plan that has covered that parent longest. In the event birth dates and length of service are the same, the dependent child will be primary to the mutual choice of the parents.

2.3 An eligible dependent child or children whose parents are divorced or not living together and not married will be primary to the plan of the parent with custody or primary to the plan of the spouse of the parent with custody unless a Court or Administrative Order defines one parent as responsible for the child’s or children’s health care expenses or health care coverage and if so, that parent’s plan will be primary. If a Court or Administrative Order states that both parents are responsible for the child’s or children’s health care expenses or health care coverage or that the parents have joint custody without specifying that one parent has responsibility for the health care expenses or health care coverage of the dependent child or children the provisions in subsection 2.2 of this regulation shall apply. If there is no Court or Administrative Order allocating custody or responsibility for the child’s or children’s health care expenses or health care coverage the provisions of subsection 2.2 of this regulation shall apply. Also see subsection 4.9 of this regulation.

2.4 Employing agencies and the Office of Pensions shall maintain files that include such documents as SEBC determines appropriate to administer the State Plan; files shall be subject to audit by the SEBC.

2.5 In accordance with 29 Del.C. §5202(h) any spouse receiving a survivor’s pension benefit from the State Employee Pension Plan, the State Police Pension Plans or the Judiciary Pension Plan may not include a new spouse in the State’s pension group health insurance plan effective June 1, 2012.

2.6 Enrollment of a dependent as defined in subsection 2.1 of this regulation is contingent upon enrollment of a regular officer, employee, or eligible pensioner.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-3.0 Coverage

3.1 Health Plan Coverage of an eligible regular officer or employee (eligible for State Share) and their eligible dependents will become effective on the first of the month following the date of hire provided the employee submits a signed application within 30 days of their hire date. Also see subsection 10.1 of this regulation regarding dental and vision plan coverage.

3.1.1 State Troopers who retire from the State of Delaware and return to active State employment in a position covered by the Delaware State Employees’ Pension Plan, must enroll in coverage through their State employer.

3.1.2 Pensioners who return to active State employment in a position covered by the Delaware State Employees' Pensions Plan must enroll in coverage through their State employer. Coverage will be effective on the first of the month following the date of rehire.

3.1.3 Participating Organizations pursuant to 29 Del C. §5209, have flexibility in determining the coverage start date for their eligible regular officers or employees and eligible dependents, if different from subsection 3.1 of this regulation, given that Participating Organizations are not subject to the State of Delaware Section 125 Cafeteria Plan.

3.1.4 Premiums are not pro-rated for employees whose coverage effective date is not the first day of the calendar month. Examples include family status changes and return from leave (without benefits).

3.1.5 Health Plan coverage for LTD beneficiaries who are totally disabled will be administered by the Office of Pensions and will become effective on the first of the month following the effective date of LTD. Health care coverage for LTD beneficiaries who are working part-time in a benefit eligible position for the State of Delaware in accordance with subsection 1.2.8 of this regulation will have their benefits administered by the employing organization.

3.1.6 IMPORTANT NOTES: Spousal Coordination of Benefits Policy became effective January 1, 1993 and revised January 1, 2023 for a spouse who is eligible for health coverage through their own employer or former employer (when spouse is retired). Spouses who work full time or who are retired and are eligible for health coverage through their current employer or former employer and are not required to pay more than 50% of the premium for the lowest individual only health plan option but do not enroll under their current or former employer’s health plan, will have a reduction in benefits under the State Plan. Information on the Spousal Coordination of Benefits Policy, Chart, online form and a Summary Plan Description (SPD) for each health care plan is available on the Statewide Benefit Office’s website at de.gov/statewidebenefits.

3.1.7 A Dependent Coordination of Benefits form must be filled out for each enrolled dependent regardless of age, upon enrollment in other health coverage, any time other health coverage changes, or upon request by the Statewide Benefits Office or the State Plan administrator.

3.2 Health Plan coverage for a permanent, part-time employee (not eligible for State Share) will become effective on the first of the month following date of hire.

3.3 Employees of the State of Delaware who are enrolled in a health insurance benefit plan must re-enroll in a plan of their choice during the open enrollment period as determined by the SEBC. Should the employees neglect to re-enroll in the allotted time, the employee’s or employees’ and any spouse’s or eligible dependents’ coverage shall be determined by the SEBC.

3.4 Employees, LTD beneficiaries, or pensioners who cover their spouse on a State health plan must fill out a Spousal Coordination of Benefits Policy form upon the spouse’s initial enrollment, each year during open enrollment upon the employee's enrollment in a State Plan administered by the Office of Pensions as a result of retirement or employment termination due to LTD, or anytime throughout the year that the spouse's employment or health insurance status changes. Failure to supply the Spousal Coordination of Benefits form shall result in the spouse's medical claims being sanctioned, which reduces health care claims to be processed at 20% of the in-network allowable changes for services covered under the State health care plan with the remainder becoming the responsibility of the employee, LTD beneficiaries, or pensioner; prescriptions must be paid in full at the pharmacy and a claim submitted to the State’s pharmacy benefit manager to be reimbursed at the allowable charge (20% minus the applicable copay).

3.5 Any employee, LTD beneficiary, or pensioner who chooses not to enroll in the State Plan must fill out and sign an application/enrollment form acknowledging the desire not to enroll by noting “waive” on the appropriate form. A pensioner who becomes Medicare eligible due to age and who chooses not to enroll in the Medicare Supplement Plan must submit a waive form to the Office of Pensions.

3.6 Eligible employees or pensioners who fail to submit a completed and signed application/enrollment form within 30 days of their date of hire, LTD benefit effective date or their date of retirement may not join the State Plan until the next open enrollment period (usually May), unless the employee or pensioner meets the requirements of subsections 3.7 and 3.8 of this regulation. Also see subsection 10.1 of this regulation regarding dental and vision plan coverage.

3.7 Pursuant to a federal law, Health Insurance Portability and Accountability Act (HIPAA), if an employee declines enrollment for themselves, their spouse, or their dependents because of other health insurance coverage and later involuntarily loses the coverage, the State employee, spouse, or dependents may be eligible to join the State Plan, without waiting for the next open enrollment period, as long as the request to enroll is made within 30 days of the loss of coverage. Necessary forms must be filled out within 30 days of the request to enroll. If such a change is not made in the time period specified, the eligible employee, spouse, and dependents must wait until the next open enrollment period.

3.7.1 The following list includes examples of loss of coverage or loss of eligibility for coverage rules under which an employee may request enrollment for themselves, their spouse, and for their dependents:

3.7.2 An increase in employee or pensioner contribution, change of benefits or change of carrier of the spouse's plan shall not constitute loss of coverage, except where the other plan terminates employer contributions. Employees should contact their Benefit Representative or Human Resources Office and pensioners and LTD beneficiaries should contact the Office of Pensions to ask specific questions about eligibility.

3.7.3 See subsections 3.8, 3.9, and 4.6 of this regulation for other instances when changes in coverage are permissible outside of annual open enrollment.

3.8 If an employee declines enrollment for themselves, their spouse, or their dependents and later has a new dependent as a result of marriage, civil union partnerships, birth, adoption, or placement for adoption, the employee may be able to enroll themselves, their spouse, and any eligible dependents in the State Plan provided that they request enrollment within 30 days after the marriage, birth, adoption, or placement for adoption. Necessary forms must be filled out within 30 days of the request to enroll. The enrollment of the spouse or dependent must be tied to the qualifying event. Please see subsection 2.5 of this regulation for exception for new spouses of surviving pensioners.

3.9 The eligible employee who is currently enrolled in a group health plan, may change their benefit plan upon the dependent's involuntary loss of coverage, in response to subsection 3.7 of this regulation, and addition to the State Plan, provided the request for enrollment is made within 30 days of the loss of dependent's coverage and necessary form must be filled out within 30 days of the request. The enrollment of the dependent must be tied to the qualifying event. In addition, if the employee has a new dependent as a result of marriage, civil union partnership, birth, adoption, or placement for adoption, the employee may change their benefit plan upon the addition of the dependent to the State Plan provided the request for enrollment is made within 30 days after the marriage, birth, adoption, or placement for adoption and the necessary paperwork is filled out within 30 days of the request. For loss of Medicaid/CHIP coverage, the employee or pensioner should request enrollment in the State Plan within 60 days of loss of coverage.

3.10 When 2 active eligible regular officers, employees, LTD beneficiaries, or pensioners and their eligible spouse and dependents choose to be covered under “employee and spouse” or 1 “family” contract then the spouse whose birthday occurs earlier in the calendar year shall sign an application for coverage form requesting coverage. Exceptions are permitted upon mutual agreement by both the State agency or organization and the Office of Pensions. (In the event the birth dates are the same, length of service, and mutual choice of parents will be applied as described in subsection 2.2 of this regulation). State Share contributions for all new enrollment will be charged to the agency or organization whose employee enrolls for employee, employee and spouse, employee and children or family coverage.

3.10.1 An eligible employee of a State Plan Participating Group (with the exception of the University of Delaware, Delaware Transit Corporation, Delaware Solid Waste Authority and the Delaware State Housing Authority) married into a civil union partnership to a State of Delaware employee enrolled in the State Plan must choose health coverage through the Participating Group. Each employee must enroll under a separate contract with their own employer. Eligible dependents may not be enrolled more than once under the State Plan and can be enrolled under either parent unless the parents cannot agree in which case enrollment shall meet the requirements of subsections 2.2 and 2.3 of this regulation.

3.10.2 Each eligible regular officer, employee, LTD beneficiary, or pensioner may choose to enroll under a separate contract, but no regular officer or employee, LTD beneficiary, or eligible pensioner may be enrolled more than once under the State Plan. Eligible dependents may not be enrolled more than once under the State Plan and can be enrolled under either parent unless the parents cannot agree in which case enrollment shall meet the requirements of subsections 2.2 and 2.3 of this regulation.

3.11 When the spouse of an eligible regular officer or employee is a retired State of Delaware employee receiving a pension, or LTD benefits, and enrolled under separate State Plan health contracts, the employing agency and the Office of Pensions will carry the coverage for their respective employee, pensioner, or LTD beneficiary. If an employee and spouse, or a family contract is chosen, the health coverage will continue to be carried through the active employee's agency until such time that the Pensioner or LTD beneficiary becomes eligible for Medicare by reason of age. The spouse may continue to have the State Plan as primary payor of benefits with the contract to continue under the active employee's agency, or the spouse may choose Medicare as the primary payor and enroll in the Medicare Supplement Plan through the Office of Pensions. Also see subsections 4.7 and 4.11 of this regulation.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-4.0 Changes in Coverage

4.1 When a covered regular officer or employee, LTD beneficiary or eligible pensioner marries or enters into a legally recognized civil union, coverage for the non-Medicare spouse or civil union partner will become effective on the date of marriage or civil union, provided the regular officer, employee, or eligible pensioner requests enrollment of the new spouse or civil union partner within 30 days of the date of the marriage or civil union and provides the necessary paperwork within 30 days of the request to enroll. A copy of a valid marriage or civil union certificate must be provided (Delaware law does not recognize common law marriage). A pensioner's Medicare eligible spouse or civil union partner will become eligible for coverage on the first of the month following the date of marriage or civil union provided the pensioner requests enrollment of the Medicare eligible spouse or civil union partner within 30 days of the date of marriage or civil union and provides necessary paperwork within 30 days of the request to enroll. Coverage effective date must be prospective and be sent a minimum of 30 days in advance of the effective date as required by CMS. A Spousal Coordination of Benefits form must be filled out when adding a spouse or civil union partner to coverage. The Spousal Coordination of Benefits form must be filled out during initial enrollment each year, during annual open enrollment and anytime the spouse’s employment or insurance status changes. A Dependent Coordination of Benefits form must be filled out for each enrolled dependent regardless of age upon enrollment in other health coverage, any time other health coverage changes, or upon request by the Statewide Benefits Office or the State Plan Administrator.

4.2 Coverage for a child or children born to a regular officer or employee, LTD beneficiary or eligible pensioner or legal spouse or civil union partner who is covered under the State Plan will begin on the date of birth provided a request to enroll the child is made within 30 days of the date of birth and provided the necessary paperwork is received within 30 days of the request to enroll. A copy of an official birth certificate must be provided (and include the regular officer or employee, LTD beneficiary or eligible pensioner’s name or legal spouse or civil union partner’s name who is covered under the State Plan). Premiums are paid on a monthly basis and not prorated. If such a change is not made in the time period specified, a covered regular officer or employee, LTD beneficiary or eligible pensioner must wait until the next open enrollment period to add the child or children.

4.3 Coverage for a child or children legally adopted or placed for adoption with a regular officer or employee, LTD beneficiary or eligible pensioner or legal spouse or civil union partner who is covered under the State Plan will begin on the date of adoption or placement for adoption provided a request to enroll for the child or children is made within 30 days of the date of adoption or placement for adoption and provides the necessary paperwork within 30 days of the request to enroll. A copy of a valid legal document attesting to the adoption or placement for adoption must be provided. Premiums are paid on a monthly basis and not prorated. If such a change is not made in the time period specified, a covered regular officer or employee, LTD beneficiary or eligible pensioner must wait until the next open enrollment period to add the child or children.

4.4 Coverage for an eligible dependent, other than a newborn child or children, who becomes an eligible dependent after the regular officer or employee, LTD beneficiary or eligible pensioner has been enrolled, becomes effective the date of eligibility provided the regular officer or employee or eligible pensioner requests enrollment within 30 days of eligible status. The necessary paperwork must be filled out within 30 days of the request for enrollment.

4.4.1 Coverage for an eligible Medicare dependent, who becomes an eligible dependent of an eligible pensioner after the eligible pensioner has been enrolled, becomes effective the first day of the month following eligibility provided the eligible pensioner requests enrollment within 30 days of eligible status. The necessary paperwork must be filled out within 30 days of the request for enrollment.

4.4.2 A copy of valid documentation of dependent status must be provided, e.g. legal guardianship, permanent guardianship, custody order. Applicable premiums must be paid.

4.5 A regular officer or employee who transfers to another agency, school district or charter school may change their plan and coverage without waiting until the next open enrollment period. If the cost charged for health coverage significantly increases or significantly decreases, the regular officer or employee may make a corresponding change in election under the plan, including commencing participation in an option with a decrease in cost, or, in the case of an increase in cost, revoking an election for that coverage and, in lieu thereof, either receiving on a prospective basis coverage under another benefit package option providing similar coverage or dropping coverage if no other health plan option providing similar coverage is available. The regular officer or employee must make the required change within 30 days of the transfer. Coverage will be effective the first of the month following the date of transfer.

4.6 Changes in coverage can only be made during the annual open enrollment period, except in the following situations and if a request is made within 30 days of the event and appropriate documentation is filled out and provided within 30 days of the request:

4.6.1 A regular officer or employee, LTD beneficiary or eligible pensioner is making a change due to a qualifying event or Special Enrollment Right as previously outlined in subsections 3.7 through 3.9 of this regulation. Under special enrollment rights, employees and dependents who decline coverage due to other health coverage and then lost eligibility or lose employer contributions have special enrollment rights. Employees, spouses, civil union partners and dependents are permitted to special enroll because of marriage, civil union partnership, birth, adoption or placement for adoption, legal guardianship, permanent guardianship, or custody order;

4.6.2 In the case of divorce or dissolution of civil union partnership, if there is a "qualifying event" under subsections 3.7 through 3.9 of this regulation, the regular officer or employee, LTD beneficiary or eligible pensioner's coverage status may change, but the plan cannot unless the provisions of 29 Del.C. §5202(d) apply. Also, see subsection 5.4 of this regulation;

4.6.3 The spouse or civil union partner of a regular officer or employee, LTD beneficiary or eligible pensioner has become a State of Delaware employee entitled to State Share in which case the plan may be changed in accordance with subsection 3.10 of this regulation;

4.6.4 A regular officer or employee, LTD beneficiary or eligible pensioner may change coverage or plan if the provisions of 29 Del.C. §5202(d) no longer apply, provided application is made within 30 calendar days of the qualifying event. Also, see subsection 5.4 of this regulation;

4.6.5 A regular officer or employee, LTD beneficiary or eligible pensioner choosing to enroll or drop health coverage or enroll or drop one or more dependents (including the spouse of such regular officer, employee, LTD beneficiary or eligible pensioner) from health coverage may enroll or drop coverage of employee, LTD beneficiary or pensioner or dependents, under the following limited circumstances as per Section 125 of the Internal Revenue Service Code and, for pensioners and LTD beneficiaries who make contributions on a post-tax basis, as allowed under the State Plan by the SEBC:

4.6.5.1 Change in status.

4.6.5.1.1 Due to death of spouse. An eligible employee or pensioner is permitted to enroll themselves if coverage is lost under the deceased spouse’s plan or to enroll their dependents who lost coverage under the deceased spouse’s plan. An eligible employee or pensioner can only drop coverage for the deceased spouse and any dependents who lost eligibility as a result of the spouse’s death.

4.6.5.1.2 Due to changes in employment status of the employee or pensioner, the employee's or pensioner’s spouse or the employee’s or pensioner’s dependent (e.g., beginning of employment, change of worksite or return from an unpaid leave of absence). An eligible employee or pensioner is permitted to enroll themselves due to beginning of employment (or other change in employment status) that creates eligibility under the Plan. An employee or pensioner whose spouse or dependent begins employment (or has another change in employment status) that creates eligibility under the spouse’s or dependent’s plan, can drop coverage for the spouse or any dependents who enroll under the spouse’s or dependent’s plan or may revoke all coverage if the employee or pensioner becomes eligible under the spouse’s plan.

4.6.5.1.3 Change in the eligibility conditions for coverage under the spouse's or dependent's employer plan. If the employee’s or pensioner’s spouse or dependent becomes eligible under the spouse’s or dependent’s employer plan as a result of a change in the eligibility conditions, the employee or pensioner may drop coverage for the spouse or dependent or may revoke all coverage if the employee or pensioner becomes enrolled under the spouse’s plan. If the employee’s or pensioner’s spouse or dependent loses eligibility under the spouse’s or dependent’s employer plan as a result of a change in the eligibility conditions, the employee or pensioner may enroll the spouse or dependent in the Plan. If a spouse’s or dependent’s eligibility changed because they satisfied the benefit waiting period, the employee can drop spouse or dependent from plan within 30 days of spouse’s or dependent’s enrollment.

4.6.5.1.4 Events that cause the employee's or pensioner’s dependent to cease to satisfy the plan's eligibility requirements. (e.g. age, student status or similar circumstance). The employee or pensioner does not have to make an election change in order to terminate coverage for the dependent, but COBRA notice to the employee is required.

4.6.5.1.5 Change in the place of residence of the employee, spouse or dependent provided that in each of the circumstances described in subsections 4.6.5.1.1 through 4.6.5.1.5 of this regulation, inclusive, the cessation of coverage for the dependent is on account of and corresponds with a change in status that affects eligibility for coverage under the plan. If employee’s spouse or dependent gains eligibility under the spouse’s or dependent’s employer plan as a result of a change in residence, the employee may drop coverage for those who become covered under the spouse’s or dependent’s plan or may revoke all coverage if the employee becomes covered under the spouse’s employer plan. If the employee’s spouse loses eligibility under the spouse’s employer plan as a result of a change in residence, the employee may enroll the spouse or any dependents who lost coverage under the spouse’s plan.

4.6.5.2 Judicial Order, Decree, or Judgment. Health coverage for 1 or more of dependent children may be dropped if a judicial order, decree, or judgment permits the cancellation of dependent child coverage, provided that the spouse, former spouse or another individual is required to cover such child and such coverage is in fact provided. Employee may drop coverage of affected dependent children.

4.6.5.3 Medicare or Medicaid Eligibility. If an employee, spouse, or dependent who is enrolled in an accident or health plan of the employer becomes entitled to coverage (i.e., becomes enrolled) under Part A or Part B of Title XVII of the Social Security Act (Medicare) (Public Law 89-97 (79 Stat. 291) or Title XIX of the Social Security Act (Medicaid) (Public Law 89-97 (79 Stat. 343), other than coverage consisting solely of benefits under Section 1928 of the Social Security Act (the program for distribution of pediatric vaccines), the regular officer, employee or eligible pensioner may for themselves or for their dependents make a prospective election change to cancel or reduce coverage of that employee or dependent under the health plan.

4.6.5.4 Change in Costs or Coverage. If the cost charged to an employee for health coverage significantly increases or significantly decreases during a period of coverage, the regular officer, employee or eligible pensioner may make a corresponding change in election under the plan, including commencing participation in an option with a decrease in cost, or, in the case of an increase in cost, revoking an election for that coverage and, in lieu thereof, either receiving on a prospective basis coverage under another benefit package option providing similar coverage or dropping coverage if no other health plan option providing similar coverage is available. For purposes of this paragraph, a cost increase or decrease refers to a change in the amount of the elective contributions under the cafeteria plan, whether that increase or decrease results from an action taken by the employee (such as switching between full-time and part-time status or going out on an unpaid leave of absence, which results in paying the full premium rate for health plan coverage) or from an action taken by an employer (such as reducing the amount of employer contributions for a class of employees).

4.6.6 If an employee’s spouse’s or dependent’s employer drops health care coverage entirely for its employees, the spouse or dependent is eligible to be enrolled in the State’s Group Health Insurance Plan, provided the request for enrollment is made within 30 days of the loss of coverage. A Spousal Coordination of Benefits form must be filled out upon enrolling the spouse in the State Plan. If the spouse was previously covered under the State Plan as secondary, a Spousal Coordination of Benefits form must be filled out indicating the date of the loss of coverage. The form will be reviewed to determine the appropriate level of coverage for the spouse.

4.6.7 If an employee’s spouse’s employer is offering coverage to its employees through the Small Business Health Options Program (SHOP), the spouse is required to enroll in the SHOP coverage unless the share of the premium for the lowest priced plan offered is more than 50% of the total cost of the coverage. An employee can cover their spouse through the State Plan, however the State Plan will pay as secondary. If the employee’s spouse is required to pay more than 50% of the total cost of the lowest plan offered, their spouse can choose not to enroll in the SHOP coverage and enroll in coverage through the employee and the spouse will be covered as primary. Enrollment must be completed within 30 days of the spouse’s loss of employer coverage. Coverage in SHOP constitutes employer coverage and requires completion of a current Spousal Coordination of Benefits form.

4.6.8 Enrollment in the Health Insurance Marketplace. An employee can drop coverage for themselves, their spouse or their dependents to enroll in coverage through the Marketplace. The request to disenroll from the State Plan must be in writing, noting the effective date of the Marketplace coverage and provided to the employee’s Benefits Representative within 30 days of the effective date of the Marketplace coverage.

4.6.9 If an eligible employee or pensioner loses coverage under another employer group health plan other than during the State Plan annual open enrollment period, the State Plan permits such eligible employee or pensioner to make a prospective election change that is on account of and corresponds with a change made under the other employer group health plan.

4.7 An eligible regular officer, employee, and their legal spouse or civil union partner (eligible to receive State Share) who becomes eligible for Medicare by reason of age or disability shall continue to be covered under the State Plan as the primary payor of benefits.

4.7.1 Regular officers or employees, spouses, civil union partners and dependents eligible for Medicare, by reason of age or disability, must apply for Medicare Part A when first eligible regardless of their coverage under the State Plan. Also see subsection 3.11 of this regulation.

4.7.2 If an employee or dependent covered under the State Plan becomes eligible for Medicare Parts A and B due to End Stage Renal Disease (ESRD) or Amyotrophic Lateral Sclerosis (ALS) the covered individual must enroll in Medicare Parts A and B and these plans will be primary after the first 30 months to the non-Medicare State Plan for the period of time as outlined in the Medicare guidelines. Employees with ESRD or ALS should contact their Human Resources Office to discuss coverage options.

4.7.3 A pensioner, pensioner's spouse, or dependent, or LTD beneficiary who becomes eligible for Medicare by reason of disability shall choose to either continue to be covered under the non-Medicare State Plan as the primary payor of benefits or enroll in the Medicare Supplement Plan. Contact the Office of Pensions to discuss options.

4.8 An employee who becomes eligible for pension or Long Term Disability (LTD) may change their plan at the onset of receiving pension or LTD and must enroll in Medicare Parts A and B upon eligibility. LTD beneficiaries who are not actively working in a benefit eligible position will have State Plan coverage through the Office of Pensions. and must enroll in Medicare Parts A and B upon eligibility by reason of age or disability.

4.9 A regular officer or employee or eligible pensioner who is required by Court or Administrative Order to provide health insurance coverage for a child or children shall be permitted to enroll under family or employee and child or children coverage, any child or children who is eligible for such coverage (without regard to any open enrollment restriction). If the employee is enrolled but fails to make application to obtain coverage of the child or children, the child or children shall be enrolled under such family or employee and child or children coverage upon application by the Division of Child Support Enforcement or Division of Social Services. The employee shall not be permitted to disenroll (or eliminate coverage of) any child or children, including during the annual open enrollment period, unless the employer is provided satisfactory written evidence that:

4.9.1 The Court or Administrative Order is no longer in effect, or

4.9.2 The child or children is or will be enrolled in comparable health coverage, which will take effect no later than the effective date of such disenrollment.

4.9.3 See subsections 2.2 and 2.3 of this regulation for Dependent Coordination of Benefits determination.

4.10 When a covered regular officer or employee, LTD beneficiary or eligible pensioner divorces or dissolves a civil union, coverage for the non-Medicare ex-spouse or non-Medicare ex-civil union partner and any ex-step-children will terminate on the day following the date of divorce. Premiums are paid on a monthly basis and not prorated. The regular officer or employee, LTD beneficiary or eligible pensioner must remit the employee contribution for the plan, which included the spouse and dependents for the entire month. The regular officer or employee, LTD beneficiary or eligible pensioner must submit a signed application within 30 days following the date of divorce or civil union dissolution. If the provisions of subsection 5.3 of this regulation no longer apply as a result of the divorce, the regular officer or employee or eligible pensioner must pay the employee contribution for the entire month that the divorce occurred. Coverage for the Medicare ex-spouse or Medicare ex-civil union partner and any ex-step-children will terminate on the first of the month following the date of divorce or civil union dissolution, provided the pensioner submits a signed application within 30 days of the date of divorce or civil union dissolution. Termination of coverage must be prospective as required by CMS.

4.11 LTD beneficiaries and pensioners or their spouses and dependents eligible for Medicare, by reason of age or disability, must enroll in Medicare Part A and B when first eligible and may enroll in the Medicare Supplement Plan provided by the State Group Health Plan through the Office of Pensions.

4.11.1 If a LTD beneficiary or pensioner or their spouse or their dependent eligible for Medicare by reason of age does not enroll, or remain enrolled, in Medicare Part A and B, they will not be eligible to enroll in the Medicare Supplement Plan. In this instance, they must remain enrolled in a non-Medicare plan until the next available opportunity to enroll in Medicare Part A and B. Coverage in the non-Medicare plan may be reduced and paid as if secondary coverage at 20% of allowable charges which reduces health care claims to be processed at 20% of the allowable charges for services covered under the State health care plan with the remainder becoming the responsibility of the employee, LTD beneficiary, or pensioner; prescriptions must be paid in full at the pharmacy and a claim submitted to the State's pharmacy benefit manager to be reimbursed at the allowable charge (20% minus the applicable copay).

4.11.2 If a LTD beneficiary or pensioner or their spouse or dependent loses Medicare Part B coverage due to non-payment of Part B premiums, they will not be eligible to enroll in a non-Medicare plan and will not be eligible for enrollment in the Medicare Supplement Plan until the next open enrollment period and only if re-enrolled in Medicare Part B coverage. Also, see subsection 3.11 of this regulation.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-5.0 Cost of Coverage

5.1 Regular officers and employees become eligible for State Share contributions on the first of the month following the date of hire. State Share contributions are limited to State regular officers, employees, LTD beneficiaries and pensioners.

5.2 Permanent part-time (regularly scheduled to work less than 130 hours per month), temporary per diem and contractual employees of the General Assembly as described in subsection 1.1 of this regulation are eligible to participate in the State Plan, but are not eligible for State Share. Therefore, any such employee joining the State Plan must pay the full cost of the health plan selected. Payment must be collected by the organization and forwarded to the Department of Human Resources/Financial & Administrative Services by the first day of the month for which the employee's coverage becomes effective.

5.2.1 If an existing full-time State employee takes a limited term position, State Share shall continue.

5.2.2 Casual and seasonal employees and substitutes are not eligible to participate in the State Plan, nor are they eligible for State Share.

5.3 Pursuant to 29 Del.C. §5202(d), eligible employees who were both each first employed as a regular officer or employee by the State on or before December 31, 2011 and a husband and wife legally married on or before December 31, 2011, may each qualify as a regular officer, employee or eligible pensioner of the State. In the case where 2 members of a family qualify, the following options are set forth:

5.3.1 The 2 employees, or an eligible pensioner, and all eligible dependents may choose to enroll under 1 family contract.

5.3.2 Each employee, or an eligible pensioner, may choose to enroll under a separate contract. Eligible dependents may be enrolled under either contract, but no dependent shall be enrolled more than once under the state health insurance program.

5.3.3 The provisions of this paragraph shall continue to apply to a surviving spouse for employee only or employee and children contracts after the death of 1 of the spouses covered in response to this paragraph has occurred, as long as the surviving spouse is entitled to a survivor's pension in response to 29 Del.C. §5528.

5.3.4 If employee and spouse are eligible pensioners where 1 or both retire on or after July 1, 2012, and before July 1, 2017, only 1 $25 per month charge shall apply when separate contracts are required for a Medicare Supplement plan.

5.3.5 Effective January 1, 2018, if the 2 employees or non-Medicare pensioners enroll under an employee and spouse or family contract, the employee or non-Medicare pensioner who enrolls for the coverage shall be charged 50% of the employee or non-Medicare pensioner cost share premium per month, or $25 per month, whichever is greater. If the employees or non-Medicare pensioners choose to enroll in separate plans, employee only and employee and children contracts, each employee or non-Medicare pensioner shall be charged 50% of the employee or non-Medicare cost share premium per month, or $25 per month, whichever is greater for the plans chosen.

5.3.5.1 If both spouses are eligible pensioners and 1 is not yet Medicare eligible, the non-Medicare pensioner will enroll under a pensioner only or pensioner and children contract and the Medicare pensioner will enroll in the Medicare Supplement plan. The non-Medicare pensioner shall be charged 50% of the cost share premium, or $25 per month, whichever is greater.

5.3.5.2 If 1 spouse is a regular officer or employee and 1 spouse is a Medicare eligible pensioner, the regular officer or employee who enrolls for employee and spouse or family coverage shall be charged 50% of the employee cost share premium. If the employee and Medicare eligible spouse choose to enroll in separate plans, employee and Medicare eligible pensioner shall be charged 50% of the employee and Medicare supplement cost share premium per month, or $25 per month, whichever is greater for the plans chosen.

5.3.5.3 If both spouses are Medicare eligible and 1 or both retired on or after July 1, 2017, only one 50% pensioner only, or $25 per month premium, whichever is greater, shall apply when separate contracts are required for a Medicare Supplement Plan.

5.3.5.4 If both spouses are Medicare eligible and both retired after July 1, 2012, and before July 1, 2017, each Medicare eligible pensioner shall be charged $25 per month premium when separate contracts are required for a Medicare Supplement plan.

5.3.6 In no case shall there be a monetary credit or return to the spouse for that spouse’s basic credits.

5.4 If a husband and wife are both permanent full-time active employees or pensioners and married to each other on or before December 31, 2011, and leave State Service, on authorized unpaid leave of absence (no longer eligible for State Share), or stop collecting a pension, on or after January 1, 2012, they will be eligible to earn State Share as indicated in subsection 5.3 of this regulation if they return or are permanent full-time active employees or pensioners at a future date as long as they are married to the same spouse who is also a regular officer or employee or pensioner.

5.5 If a regular officer or employee, LTD beneficiary or eligible pensioner, or beneficiary selects coverage under any plan, the employee or pensioner is responsible for paying the monthly employee premium cost for the selected plan and coverage class (employee, employee and child, employee and spouse, or family).

5.6 A regular officer or employee, LTD beneficiary or eligible pensioner who is eligible for the State Share contribution may not receive the cash equivalent in lieu of the coverage itself.

5.7 Health coverage premiums for State of Delaware regular officers and employees are collected on a lag basis. (Example: January coverage is paid by deduction in the second pay of January plus deduction in the first pay of February).

5.7.1 Each agency/school district/sub group is responsible for reconciling premiums to ensure that proper payment has been remitted. Payments, other than those made through OMB/PHRST’s automated payroll system, and all adjustments must be submitted in accordance with Statewide Benefits Office procedures. The State Plan will not be responsible for payment of premiums or claims if a signed enrollment form/confirmation statement/waiver is not in the employee file.

5.7.2 When a regular officer or employee of the State transfers from one State agency, school district, or charter school to another mid-month, the State agency, school district, or charter school where the employee left is responsible for the health plan premium payment for the entire month.

5.8 An eligible employee who returns from an authorized unpaid leave of absence is entitled to State Share payments upon return. The employee must request enrollment by contacting their Human Resources Office within 30 days of return from leave of absence. State Share and coverage (if it has lapsed) begin on the date of return from leave of absence.

5.9 Any regular officer or employee, LTD beneficiary or eligible pensioner who fails to make payment for their share of the cost of health coverage when they are eligible to continue coverage and does not have sufficient salary, disability or pension from which payment can be deducted will have coverage canceled on the first day of the following month that a regular officer or employee, LTD beneficiary or eligible pensioner fails to pay the required share for the coverage selected.

5.9.1 Family and Medical Leave Act (FMLA) regulations provide that employees have a 30-day grace period for late premium payments. The employer's obligation to maintain health coverage ceases if an employee's premium payment is more than 30 days late.

5.9.2 Benefit Representative or Human Resources Offices should continue the employee's health coverage for the 30-day period provided under FMLA. The Benefit Representative or Human Resources Offices can then do a retroactive cancellation if the required employee contribution was not paid by the end of the 30-day grace period. (See subsection 5.21 of this regulation for additional FMLA considerations.)

5.10 An employee who has a break in active employment due to authorized leave of absence, suspension, termination or unauthorized leave of absence without pay for a full calendar month, shall not be eligible for State Share for that calendar month and any subsequent calendar month that the employee is in a non-pay status for the entire calendar month. In the case of an authorized leave of absence, an intermittent return to work or use of paid leave of less than five full days in one month, the employee shall not be entitled to State Share contributions. Full payment must be made to the organization by the first of each month in order to retain coverage and the organization shall remit payment to the Department of Human Resources/Financial & Administrative Services. Upon return, the employee is eligible for State Share, provided the break was the result of any of the following:

5.10.1 An authorized leave of absence;

5.10.2 A suspension without pay; or

5.10.3 Termination or unauthorized leave of absence for a period less than 30 calendar days.

5.11 State Share will be paid for employees drawing Workers' Compensation and State Personal Injury Protection (PIP), provided the employee is not eligible for coverage from a subsequent employer. Such an employee must submit payment for the share of the coverage that would normally be deducted from their salary.

5.12 State Share will be paid for employees who are approved for Short Term or Long Term Disability or both through the State's DIP.

5.12.1 Employee's share of premium shall be deducted by OMB from employee's salary or by the DIP Plan Administrator from the beneficiary’s monthly LTD check.

5.12.2 Employees whose STD claims are in a pending status are entitled to receive State Share for the period the STD claim is in a pending status. If STD claim is denied, the employee is responsible for the State Share paid on their behalf while the claim was in a pending status.

5.12.3 . Employees who are appealing a STD termination or benefit denial or both are eligible to receive State Share for the period the employee is appealing or requesting STD benefits. If the appeal results in a denial, the employee is responsible for the State Share paid on their behalf during the period the claim was in a pending appeal status.

5.13 Any refund of State Share or employee or pensioner share for health plan coverage is subject to the following requirements:

5.13.1 A regular officer, employee, LTD beneficiary or eligible pensioner who has paid the State Share in order to ensure continuation of health coverage and then later is found to have been eligible for receipt of State Share, is to be refunded the amount that was not paid by the State. The employee or pensioner must make application for the refund within 1 calendar year of the date the employee first paid the State Share to be refunded as required under 10 Del.C. §8111.

5.13.2 A regular officer, employee, LTD beneficiary or eligible pensioner who has paid the employee or pensioner share then later is found to have been eligible for State Share in accordance with 29 Del.C. §5202(d) is to be refunded the amount paid for employee or pensioner share for a period not to exceed 1 calendar year. The employee or pensioner seeking a refund must make application for the refund within 1 year of the date the employee or pensioner first paid the employee or pensioner share to be refunded as required under 10 Del.C. §8111.

5.13.3 A regular officer, employee, LTD beneficiary or pensioner who has paid the employee or pensioner share for an ineligible dependent (for example following divorce, death, or exceeding the dependent age limits) is to be refunded the amount paid for employee or pensioner share for a period not to exceed 60 days, provided that the State Plan has not paid claims for the dependent during the period of ineligibility. The employee or pensioner seeking a refund must make application for the refund within 60 days of the date the employee or pensioner paid the employee or pensioner share to be refunded. The employee or pensioner shall be liable for any amounts paid by the State Plan on behalf of the ineligible dependent and which exceed employee or pensioner share paid and attributable to the dependent for the period of ineligibility. A regular officer, employee, LTD beneficiary or pensioner who fails to make notification of a divorce or civil union dissolution within 30 days shall not be eligible for a refund.

5.13.4 A regular officer, employee, LTD beneficiary, or pensioner who has paid the employee or pensioner share for themselves or a covered dependent and later found to be dual covered under another health plan contract through the GHIP shall be refunded the amount paid for the employee or pensioner share for a period not to exceed 60 days, assuming the dual coverage has been resolved.

5.13.5 If an employee is terminated from employment and does not pay the employee share for the second half of the month in which terminated, coverage under the Plan is terminated as of the first day of the month. A refund will be given, if the employee makes request for a refund within 60 days and upon determination that the State Plan did not pay claims for any enrolled members during the month of employment termination.

5.13.6 Refunds of less than $1.00 will not be made.

5.13.7 The refund is limited to the amount paid by the regular officer, employee, or eligible pensioner during the 1 employee or pensioner share for which the State should have paid the State Share or employee or pensioner share as established in accordance with 10 Del.C. §8111.

5.14 Teachers who are granted a sabbatical leave of absence are eligible for State Share while they are on such leave. Also see subsection 6.3 of this regulation.

5.15 All employees whose positions are involuntarily terminated after they have been employed for a full calendar year (or full school year) who return to full-time State employment within 24 months of their termination or rehired shall be eligible for coverage and State Share on the first of the month following the date of rehire.

5.16 A temporary, casual, seasonal employee, or substitute teacher of the State who becomes a "Regular Officer or Employee" will be eligible for coverage and State Share on the first of the month following the date they become a "Regular Officer or Employee".

5.17 State Share shall continue for a "Regular Officer or Employee" who is temporarily appointed to a position that results in a dual incumbency.

5.18 Any regular officer, employee or pensioner who is also receiving a survivor’s pension through the State of Delaware shall also be entitled to State Share for the survivor’s pension. The increment of cost of the contract selected by the regular officer or employee or eligible pensioner who is also receiving a survivor’s pension, shall be deducted by the Director of the Office of Management and Budget (OMB) from salary, pension, or disability payment or checks. Also see subsection 5.3.3 of this regulation.

5.19 A regular officer or employee called to active duty with the National Guard or Reserve for other than training purposes shall continue to receive State Share toward health insurance coverage for a period of up to 2 years. Employee's share must be remitted to Benefit Representative or Human Resources Office for further processing.

5.20 In the event that the State Plan has paid the employee or pensioner share or any copays, coinsurance, deductibles or other amounts that the Statewide Benefits Office determines should have been paid by the regular officer, employee, LTD beneficiary or pensioner or covered spouse or dependent of the regular officer, employee, LTD beneficiary or pensioner after deducting premiums paid during the applicable period and upon prior written notice to such regular officer, employee, LTD beneficiary or pensioner (which shall not be less than 60 days), the State Plan, to the extent permissible under applicable law, may recover such amounts from such regular officer, employee, LTD beneficiary or pensioner by deducting the amount paid by the State Plan from the after tax pay due to the regular officer or employee, LTD beneficiary or by invoicing the regular officer, employee, LTD beneficiary or pensioner.

5.20.1 The regular officer, employee or pensioner shall be provided an opportunity to dispute such amounts owed to the State Plan to the Statewide Benefits Office; and

5.20.2 If the amount owed by the regular officer, employee, LTD beneficiary or pensioner exceeds $500 then the regular officer, employee, LTD beneficiary or pensioner shall be provided an opportunity to have the amount owed deducted or invoiced in monthly installments over a period of time not less than 12 months. In accordance with 10 Del.C. §8106(a), payment which the State Plan has made for the employee, LTD beneficiary or pensioner share or any copays, coinsurance, deductible or other amounts that the Statewide Benefits Office determines should have been paid by the regular officer, employee, LTD beneficiary or pensioners or covered spouse or dependent of the regular officer, employee, LTD beneficiary or pensioner for a period of up to 1 year may be collected from the regular officer, employee, LTD beneficiary or pensioner after deducting premiums paid during the applicable period and provided the State Plan shall provide such regular officer, employee, LTD beneficiary or pensioner an opportunity to repay the amount due in a period of time not less than the total number of months being collected by the State Plan or not less than 12 months if the amount owed exceeds $500.

5.21 Family and Medical Leave Act (FMLA) regulations provide that employees who fail to return to work after their FMLA leave entitlement has been exhausted shall be responsible for repayment of the State Share under the group health plan unless they fail to return to work due to their own or eligible family member’s serious health condition, or for some other reason beyond their control, including STD leave.

5.22 Pensioner State Share eligibility is set forth in 29 Del.C. §5202(b).

5.23 A pensioner who returns to active State employment as a "Regular Officer or Employee" is entitled to coverage and State Share on the first of the month following the date or hire.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-6.0 Continuation of Coverage

6.1 To continue coverage, a covered regular officer, employee, LTD beneficiary or pensioner must pay the difference between the State Share contribution and the cost of the coverage selected. Coverage will end on the first day of the month the employee did not make the required payment.

6.2 An employee granted an unpaid authorized leave of absence can maintain membership in the group health plan by paying the full cost of coverage (State Share plus employee share) during the period of the leave as long as that leave of absence does not exceed 2 years. An employee who returns from an authorized leave of absence, whether they maintain coverage or not while on leave of absence, is authorized to receive State Share immediately upon return. An employee on FMLA leave is entitled to have health insurance benefits (including the State Share) maintained while on an FMLA leave. If an employee was paying State Share or employee share or both of the premium payments before leave, the employee would continue to pay the same share during the leave period. Premium payments are due by the first day of the month following the effective date of coverage. Failure to make such payment within 30 days of the due date will result in termination of coverage. Also see subsection 5.9 of this regulation.

6.3 Coverage continues for teachers who are granted sabbatical leave provided they make the required payments for their share of the cost of their coverage; otherwise, their coverage ends effective the last day of the month in which the employee share of the premium was received. State Share continues while employee is on sabbatical leave provided that the teacher on sabbatical leave makes the required payments for their share of the cost of coverage. Also see subsection 5.14 of this regulation.

6.4 Employees leaving State employment, except for termination due to gross misconduct or whose application for LTD benefits under the DIP has been approved, are eligible for continuation under COBRA. Employees should contact their Benefits Representative or Human Resources Office for details of this continuation option.

6.5 An eligible employee or eligible dependent that loses coverage under the State Plan may continue coverage under COBRA. If a COBRA qualifying event occurs, the employee or the employee's dependent or dependents must notify the employee's Benefit Representative or Human Resources Office or the State's COBRA Administrator to provide notice of the qualifying event within 60 days of its occurrence.

6.6 Upon expiration of the covered individual's COBRA eligibility, the individual may apply directly to the insurance company for a direct billed health insurance contract.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-7.0 Termination of Coverage

7.1 Coverage ends on the last day of the month in which the employee terminates employment. A public school or higher education employee (less than 12-month employee) whose employment during a school year continues through the last scheduled work day of that school year shall retain coverage through August 31 of the same year so long as the required employee share has been paid. If an employee works 1 day in the month in which they are terminated, they shall earn State Share for the entire month. In the event an employee fails to make the required payment for any coverage selected, coverage will be terminated effective the first of the month in which the employee terminated coverage.

7.2 Coverage (and dependent coverage, if applicable) ends as of the end of the month in which the employee ceases to be an eligible employee for coverage (due to some change such as a reduction in the number of hours the employee works).

7.3 Coverage of dependents, except for dependents of pensioners and dependents eligible for a survivor's pension and dependent children for covered persons who died in the line of duty after January 1, 2004 in accordance with 18 Del.C. §6602(a)(5), ends as of the last day of the month of the employee's death. Dependents who lose coverage as a result of the employee's death are eligible for continuation under COBRA. Contact the State's COBRA administrator for details of this continuation option.

7.4 Ex‑spouses or ex-civil union partners who are not employed by the State of Delaware are not eligible for coverage under the State Plan even if a divorce decree, civil union dissolution, settlement agreement or other document requires an employee to provide coverage for an ex‑spouse or ex-civil union partner.

7.4.1 Coverage for the ex‑spouse, or ex-civil union partner of an active employee, LTD beneficiary or pensioner covered by a non-Medicare plan will end on the day after the date of divorce.

7.4.2 Coverage for the ex-spouse, ex-civil union partner, or ex-step-children of a pensioner covered in the Medicare supplement plan will terminate on the last day of the month following the date of divorce or civil union dissolution provided the pensioner submits a signed application within 30 days of the date of divorce or civil union dissolution. Termination of coverage must be prospective as required by CMS.

7.4.3 Premiums are paid on a monthly basis and not prorated. The regular officer or employee, LTD beneficiary or eligible pensioner must remit the employee or pensioner share for the plan which included the spouse for the entire month. The regular officer or employee, LTD beneficiary or eligible pensioner must submit a signed application within 30 days before the date of divorce. If the provisions of 29 Del.C. §5202(d) no longer apply as a result of the divorce, each regular officer, employee, LTD beneficiary or eligible pensioner must pay the employee contribution for the entire month that the divorce occurred. The State Plan will not be responsible for payment of claims when a dependent is no longer eligible for coverage. Also see subsections 5.13 and 5.20 of this regulation.

7.5 Coverage for a dependent child or children will end the earlier of the following:

7.5.1 The end of the month in which the dependent child or children as defined in subsection 2.1.1.3 of this regulation attains age 26; or

7.5.2 The end of the month in which the dependent child or children as defined in subsection 2.1.1.4 of this regulation marries, or attains age 19 (or age 24 if full-time student); or

7.5.3 The date the child or children ceases to be dependent on the regular officer or employee or eligible pensioner for at least 50% support per subsections 2.1.1.4, 2.1.1.5, and 2.1.1.6 of this regulation.

7.6 Coverage for a LTD beneficiary will end as of the end of the month in which their LTD benefits end.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-8.0 Reinstatement of Coverage

8.1 Once a regular officer or employee, LTD beneficiary or eligible pensioner has requested that their coverage be canceled, they cannot rejoin the State Plan until the next annual open enrollment period unless such regular officer or employee or eligible pensioner qualifies for re-enrollment under the applicable exceptions to these Rules.

8.2 An employee who returns from an authorized leave of absence not exceeding 24 months in duration who does not maintain coverage while on leave of absence, is permitted to enroll the first of the month following date of hire, provided the employee requests enrollment within 30 days of return and fills out the necessary paperwork required to enroll within 30 days of the request for enrollment. Coverage will begin as of the date the employee returns from leave following completion of the necessary paperwork and payment of any required employee share. Premiums are paid on a monthly basis and are not prorated. Also see subsection 5.8 of this regulation.

8.3 A pensioner who returns to active State employment will be eligible for State Share on the first of the month following the date of hire.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-9.0 Employee and Employing Agency Responsibilities

9.1 It is the responsibility of the regular officer, employee or eligible pensioner to keep their Benefit Representative or Human Resources Office informed of any change of address or change in status which results in the adding or dropping of dependents (marriage, divorce, birth, death, adoption, etc.) that affects their health care coverage. The request for enrollment/changes to enrollment must be made within 30 days of the qualifying event and the necessary paperwork must be filled out within 30 days of the request. In turn, it is the responsibility of the Benefit Representative or Human Resources Office to make the necessary changes in the appropriate payroll system, or to notify the Statewide Benefits Office of these changes. Failure to do so may affect eligibility of coverage or extent of coverage for any participant and could impose an extreme hardship on a regular officer or employee or eligible pensioner. The State Plan will not be responsible for payment of premiums or claims in the event of ineligibility or the absence of a signed enrollment form/confirmation statement in the regular officer or employee or eligible pensioner's file. Also see subsections 5.13 and 5.20 of this regulation.

9.2 The State Plan shall not be responsible for payment of premiums or claims in the event of ineligibility or the absence of a signed enrollment form or confirmation statement in the regular officer or employee or eligible pensioner's file. Also see subsections 5.13 and 5.20 of this regulation.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

19 Del. Admin. Code § 2001-10.0 Dental and Vision Plans

10.1 Any rules related to the dental and vision plans not contained herein are subject to the applicable guidelines within Section 1.0 through subsection 9.2 of this regulation.

10.2 Employees or pensioners choosing to pay for and receive coverage under one of the Dental or Vision Plans should be aware of the following terms:

10.2.1 Dental and Vision Plans are not affected by the provisions of 29 Del.C. §5202(d). Employees and Pensioners are required to pay the full premium;

10.2.2 Employees may enroll in a Dental or Vision plan on the first of the month following the date of hire;

10.2.3 The Dental and Vision Plans’ effective date is always the first of the month following the date of hire and not on date of hire (even if the date of hire is the first day of the month);

10.2.4 Dental and Vision Plans’ refund rules are limited to 60 days or less because the Dental and Vision Plans are fully insured provided that no claims were paid during the period of the refund requested. Refunds are not made if notification is not provided within 60 days of the qualifying event;

10.2.5 Dental and Vision Plans’ term dates are limited to 60 days or less from the date of the notification by the employee;

10.2.6 Dental or Vision Plan or both will be terminated in the event that employee is 30 days delinquent in payment of Dental or Vision Plans’ premium and any paid claims in the same period may be reversed;

10.2.7 If an employee is terminated from employment and does not pay the Dental or Vision Plans’ premium for the second half of the month in which terminated, coverage under the Dental or Vision Plans will be terminated as of the first of the month, any claims paid for that month may be reversed and a refund may be given, if employee makes request for refund within 60 days of the termination date;

10.2.8 School district, charter and higher education employees (except those of Delaware Technical Community College) who are offered school district or employer dental and vision coverage are not eligible for coverage under the State Dental or Vision Plans;

10.2.9 The employee or pensioner’s selection of a Dental or Vision plan is binding for the plan year and the employee or pensioner may not change such coverage until the next open enrollment period unless the employee meets the requirements of subsections 3.7 through 3.9 of this regulation.

10.2.10 An employee on approved leave of absence without pay may waive participation in the Dental or Vision Plan. Employee must notify their Benefit Representative or Human Resources Office of request as their waive of coverage must be designated in the appropriate enrollment System and notification made to the dental or vision plan. When employee returns to work and upon submission of a signed enrollment form, participation will be reinstated in the appropriate enrollment system to be effective as of the date of the employee's return to work.

10.2.11 An employee on approved leave of absence without pay may continue to participate in the Dental or Vision Plan by making full payment of premium by the first of each month or coverage will be terminated. Employee must make payment to Benefit Representative or Human Resources Office for further processing.

History

6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
16 DE Reg. 1003 (03/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 91 (07/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
17 DE Reg. 656 (12/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
13 DE Reg. 683 (11/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
6 DE Reg. 1515 (05/01/03)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
6 DE Reg. 690 (11/01/02)
12 DE Reg. 986 (01/01/09)
13 DE Reg. 126 (07/01/09)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)
12 DE Reg. 986 (01/01/09)
15 DE Reg. 225 (08/01/11)
15 DE Reg. 1071 (01/01/12)
16 DE Reg. 1003 (03/01/13)
16 DE Reg. 1090 (04/01/13)
18 DE Reg. 79 (07/01/14)
24 DE Reg. 601 (12/01/20)
27 DE Reg. 532 (01/01/24)

2002 State Employees' Pension Plan

19 Del. Admin. Code § 2002 State Employees' Pension Plan

Sections and Regulations as Adopted by the State Board of Pension Trustees

(Proposed June 1, 2021)

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-1.0 Plan Year

The Plan Year for the Pension Fund is the twelve (12) month period beginning July 1.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-2.0 Pension Administrator

The Executive Secretary appointed by The Board of Pension Trustees pursuant to 29 Del.C. §8308(2) shall be the Pension Administrator.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-3.0 Credited Service

3.1 Definitions:

“Accredited private school or college” as used in 29 Del.C. §5501(e)(5) means a private school or college which, during the time the pension applicant was employed there, was accredited by its Regional States Association of Colleges and Secondary Schools or whose students were routinely able to transfer to a school or college accredited by one of the aforesaid Regional Associations without loss of academic credit.

"Application for benefits" as used in 29 Del.C. §5531, means the date on which the signed written application and other necessary documentation is received by the Office of Pensions or by the employee's agency/school district.

“Approved medical leave” as used in 29 Del.C. §5501(9) means that period of time during which a participant is on a properly granted medical leave of absence from the participant’s employer.

“Course of professional or vocational training” as used in 29 Del.C. §5501(e)(4) means an academic course leading to the attainment of a certificate, diploma or degree, and offered by a public or private, non-profit or proprietary institution as approved or accredited by an appropriate State agency or National/Regional organization. A person engaged in such course of instruction shall have been enrolled on a full-time basis, under regulations of the institution in effect at the time of attendance, and shall have completed the course of instruction in which enrolled, by continuous attendance, so as to complete the course of instruction on a scheduled date. Interruption of attendance may be occasioned only by reason of personal medical problems which militate against regular attendance or full-time military duty during war or other declared emergency.

"During time of war or national emergency" as used in 29 Del.C. §5501(e)(4), means all months commencing with the month of September, 1940 and continuing until the Board of Pension Trustees decides that a period of war or national emergency has ceased.

“Full-time or annual basis” as used in Title 29 Del.C. §§5501(f)(2) and 5527(e), means, for those employees hired:

(i) Through July 31, 1973 employed for at least sixty-five (65) hours per month for at least 9 months during a period of twelve (12) consecutive months; and

(ii) On and after August 1, 1973 employed in a position which requires at least One-hundred thirty (130) hours per month for at least nine (9) months during a period of twelve (12) consecutive months.

"Professional educational employment" as used in 29 Del.C. §5501(e)(5), means documented Full-Time employment for another State, a municipality in another State, the Federal Government, or an accredited private school or college anywhere in the world, and shall not include part-time employment such as employment as a graduate teaching assistant. A school is accredited within the meaning of this § 3.1.1 if the Delaware Department of Public Education allows teaching credit for service as a teacher in such school. Documentation of such accreditation shall be provided to the Office of Pensions in the application.

“Regular part-time employee” as used in 29 Del.C. §§5501(f)(2) and 5527(f), means an employee who either:

(i) is employed in a position which requires at least fifty (50) hours per month for at least 9 months during a period of twelve (12) consecutive months, or

(ii) is employed in a position where the part-time rate for the position is at least fifty (50) times hourly minimum wage for at least nine (9) months during a period of twelve (12) consecutive months.

(iii) In determining the period of nine (9) months during twelve (12) consecutive months in the case of a regular part-time teacher or other school employee who has worked for less than twelve (12) months and whose work year is established as the school year, if such employee worked before and after any school breaks or vacations, the break time or vacation time would be considered as if the employee had worked.

“The Plan” means the State Employees’ Pension Plan, as set forth in 29 Del.C. Ch 55.

“The Plan Trust” means the Delaware Public Employees' Pension System Trust, created pursuant to 29 Del.C. Ch. 83.

3.2 Credit for vacation and accrued sick leave. An employee or the employee’s survivor may elect to use accrued periods of vacation or accrued sick leave as credited service under 29 Del.C. §5501(e)(1), provided that an employee or the employee’s survivor may not receive a pension for any month during the periods of vacation or sick leave so used. Service so credited may be used to establish eligibility for a service, disability, survivor or vested pension.

3.3 Educational employment credited service. Service rendered for the regular school year shall be equivalent to one year's credited service, but in no case shall more than one (1) year of service be creditable for all employment services in one (1) year. Employees who render service for a lesser period of time than that which is established for the regular school year shall receive credited service based upon the actual time employed as a percentage of the time established for a regular school year. A regular school year shall be based upon the period of time established by the State Board of Education or any institution of higher education in the State.

3.4 Employee work conditions for credited service. To be deemed an employee for credited service, an employee of the State must:

3.4.1 Report for and work in an official work place of the State or must report for and attend a school or course of instruction in the manner required by the school or other institution pursuant to the direction or authorization of the employee’s employer, and be directly accountable to the employer who supervises the employee’s work or course of instruction; or

3.4.2 Become eligible for Worker's Compensation during the course of employment as defined in subsection 3.4.1. The employee's accrual of credited service shall continue only so long as the employee shall remain eligible for and be receiving Worker's Compensation and remains an employee as defined under 29 Del.C. §5501(f).

3.5 Leave of absence without pay. Any employee on an agency approved leave of absence shall not incur a break in service under 29 Del.C. §5501(e)(6), provided that the leave of absence without pay is approved in writing by the employing agency or school board, and a copy thereof is filed with the Office of Pensions. The leave of absence without pay may not exceed a period of twelve (12) consecutive calendar months, unless approved by the Pension Administrator.

3.6 One-year limitation: In no case shall more than one (1) year of credited service be granted for any employment services during any twelve (12) month period.

3.7 Ordinary service purchase. The actuarial rate to purchase credit under 29 Del.C. §5501(e)(8) shall be adopted by resolution of the Board of Pension Trustees.

3.8 Rights of former employees returning to active service as an employee.

3.8.1 Repayment of withdrawal benefits.

3.8.1.1 If a former employee, who withdrew the employee’s accumulated contributions upon termination of service before January 1, 1986 again becomes an employee, the employee’s service credits to the date of termination shall be restored in accordance with the provisions of 29 Del.C. §5501(e)(6) if the employee repays the total amount withdrawn within ninety (90) days after written notification of such repayment option from the Office of Pensions.

3.8.1.2 If a former employee, who withdrew the former employee’s accumulated contributions upon termination of service on or after January 1, 1986 again becomes an employee, the employee’s service credits to the date of termination shall be restored in accordance with the provisions of 29 Del.C. §5501(e)(6) if the employee repays the total amount withdrawn, plus an interest rate charge as adopted by the Board, compounded annually, within ninety 90 days after notification from the Office of Pensions.

3.8.1.3 If the repayment occurs after the ninety (90) days following written notification of such repayment option from the Office of Pensions, the repayment shall be equal to the amount in subsections 3.8.2 or 3.8.3 plus, for each full month or fraction thereof following the last day of the ninety (90) day period, interest rate charge as adopted by the Board.

3.8.1.4 Any interest rate charges collected under subsections 3.8.2 or 3.8.3 shall not be considered part of accumulated contributions and shall not be refunded if the former employee takes a refund of accumulated contributions subsequent to a repayment.

3.8.2 Rights of non-disability pensioners who return to active service as a full-time or regular part-time employee.

3.8.2.1 A pensioner, other than a disability pensioner, who again becomes an employee under 29 Del.C. §5501, shall be eligible for an additional pension for each month of credited service during the employee’s period of re-employment, with such additional pension computed as follows:

3.8.2.2 Employees who return for subsequent terms of employment which equal or exceed five (5) years and who waive the pension benefits accepted upon initial retirement and repay all benefit monies received from the prior retirement or retirements shall be eligible for a pension computed in accordance with all provisions of 29 Del.C. Ch. 55.

3.8.2.3 Employees who return for subsequent terms of employment which total less than 5 years or employees who elect not to re-retire under subsection 3.6.1.1 above shall be eligible for an additional pension for each month of credited service during the employee’s period of re-employment, with such additional pension computed in accordance with all provisions of 29 Del.C. Ch. 55, provided, however, that the original pension payable before the employee again became an employee shall not be recomputed and shall be payable in the same amount on the date of the employee’s subsequent retirement plus any post retirement increases the employee would have been eligible to receive during the employee’s period of active employment.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-4.0 Distribution of benefits

4.1 Effective date of pensions.

4.1.1 Pension beneficiary: Beginning with the month of May 1972, all pensions shall become effective on the first day of the month. Under 29 Del.C. §5531, a monthly benefit shall not be payable for any period earlier than the first day of the second month preceding the date on which application for such benefit is filed.

4.1.2 Deceased pensioner monthly benefit and survivor's pension: Beginning with the month of May, 1972, the full pension benefit shall be payable for the month in which a pensioner's death occurs and shall be payable to the pensioner or the pensioner’s estate. Survivor's monthly pension benefit, if any, shall become effective the first day of the next month following the month in which a pensioner's death occurs.

4.2 Erroneous payments. Any overpayment of benefits to a pensioner shall be recovered by the State Pension Administrator who, after written notice to the pensioner, shall withhold the amount due from the pensioner's monthly pension benefit within a twelve (12) month period, provided that the amount of monthly withholding may not exceed fifteen percent (15%) of the monthly pension benefit. If repayment of any overpayment amount will require more than twelve (12) months, the withholding shall be made at the rate not to exceed fifteen percent (15%) of the monthly pension benefit until the overpayment has been recovered in full.

4.3 Withdrawal benefits. Employees terminating employment who are not eligible for a service or disability pension shall be paid their accumulated contributions with interest pursuant to 29 Del.C. §5530. Such payments shall not be made until the Office of Pensions has verified the employee's total pension contributions. The interest rate to be paid on such payments shall be adopted by resolution of the Board.

4.4 Survivor benefits.

4.4.1 Child with permanent disability. In order to establish eligibility for a survivor’s pension for a child who “has a permanent disability as the result of disability which began before the child attained age 18” as set forth in 29 Del.C. §5528 (d)(3) and (e)(3), the following documentation, in the form prescribed by the Board, shall be provided:

4.4.1.1 That the child is unmarried and the child is dependent upon the parents or the child is unable to do any substantial, gainful work, and

4.4.1.2 An opinion from a qualified physician which finds that the child has a medically determined physical or mental impairment that renders him or her permanently disabled, and unable to do any substantial and gainful work and that such permanent disability began before the age of 18 years, or a determination that the child is disabled for the purposes of Social Security SSI.

4.4.2 Reduction factors for survivor's pensions. The reduction factors for survivor's pensions payable under 29 Del.C. §5528 shall be adopted by resolution of the Board. Such benefits will not be subject to employer discretion.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-5.0 Distribution requirements to comply with IRS Code §401(a)(9) [Compliance with Code Section 401(a)(9)(RMDs); IRS-approved language]

5.1 Distributions from the Pension Trust may be made only upon the death of a plan participant, termination of service by voluntary resignation, attainment of normal retirement age under the terms of the Plan, qualification for a disability pension under the terms of the Plan, or attainment of the age of 70½ (if the Plan participant was born before July 1, 1949) or after age 72 (if the Plan participant was born after June 30, 1949) except for an employee in active status.

5.2 The Pension Fund will pay all benefits in accordance with a good faith interpretation of §401(a)(9) of the Internal Revenue Code of 1986 and the regulations under that section, as applicable to a governmental plan within the meaning of §414(d) of the Internal Revenue Code.

5.3 Notwithstanding any other provision of these sections and regulations, the Pension Fund is subject to the following provisions:

5.3.1 Benefits must begin by the required beginning date, which is the later of April 1 of the calendar year following the calendar year in which the Plan participant reaches 701/2 years of age (if the Plan participant was born before July 1, 1949) or after 72 years of age (if the Plan participant was born after June 30, 1949) or April 1 of the calendar year following the calendar year in which the Plan participant terminates employment. If a Plan participant fails to apply for retirement benefits by April 1 of the calendar year following the calendar year in which he or she reaches 701/2 years of age (if the Plan participant was born before July 1, 1949) or after age 72 (if the Plan participant was born after June 30, 1949) or April 1 of the calendar year following the calendar year in which he or she terminates employment, whichever is later, the Board will begin distributing the benefit as required by this section.

5.3.2 The Plan participant's entire interest must be distributed over the Plan participant's life or the lives of the Plan participant and a designated survivor under state law, or over a period not extending beyond the life expectancy of the Plan participant or of the Plan participant and a designated survivor under state law. Death benefits must be distributed in accordance with §401(a)(9) of the Internal Revenue Code of 1986, including the incidental death benefit requirement in §401(a)(9)(G) of the Internal Revenue Code of 1986, and the regulations implementing that section.

5.3.3 The life expectancy of a Plan participant, the Plan participant's spouse, or the Plan participant's survivor under state law may not be recalculated after the initial determination for purposes of determining benefits.

5.3.4 If a Plan participant dies after the required distribution of benefits has begun, the remaining portion of the Plan participant's interest must be distributed at least as rapidly as under the method of distribution before the Plan participant's death and no longer than the remaining period over which distributions commenced.

5.3.5 If a Plan participant dies before required distribution of the Plan participant's benefits has begun, the Plan participant's entire interest be distributed as follows:

5.3.5.1 If the participant's surviving spouse is the sole designated beneficiary, the participant's remaining interest in the Plan is distributed or begins to be distributed by December 31 of the calendar year immediately following the calendar year in which the member died or by December 31 of the calendar year in which the member would have attained age 70½ (if the deceased member was born before July 1, 1949) or after age 72 (if the deceased member was born after June 30, 1949), if later, and if the surviving spouse dies before the distribution to the surviving spouse begins, subsection 10.3.5.1 of this regulation shall be applied as if the surviving spouse were the Plan participant; or

5.3.5.2 If the participant's surviving spouse is not the sole designated beneficiary, the benefit must be distributed (in accordance with federal regulations under §401(a)(9) of the Internal Revenue Code of 1986) over the life or life expectancy of the designated survivor under state law, with the distributions beginning no later than December 31 of the calendar year immediately following the calendar year of the Plan participant's death, or

5.3.5.3 Distributed by December 31 of the calendar year containing the fifth anniversary of the Plan participant's death.

5.3.6 The amount of an annuity paid to a Plan participant's Beneficiary may not exceed the maximum determined under the incidental death benefit requirement of §401(a)(9)(G) of the Internal Revenue Code of 1986.

5.3.7 The death and disability benefits provided by Pension Fund are limited by the incidental benefit section set forth in Treasury Regulation §1.401-1(b)(1)(ii) or any successor regulation thereto.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-6.0 Disability

6.1 “Disability”. The term "physical or mental disability" as used in 29 Del.C. §5524(c) shall mean a condition which causes an employee with a medically documented physical or mental disability which prevents the employee from performing the duties of the employee’s position and causing absence from work for period of at least ninety (90) consecutive days from the documented inception of the disability to the date the employee returns to work.

6.2 Documentation of disability. An application for disability shall be on the form prescribed by the Pension Office and shall include an evaluation from a qualified physician or psychologist.

6.3 Disability review. Disability Pension Applications shall be reviewed by a qualified and independent third-party examiner approved by the Board, and who shall provide a report to the Pension Administrator.

6.4 Period of disability.

6.4.1 The employing agency or school may grant up to twelve (12) consecutive calendar months of leave.

6.4.2 To extend the leave beyond twelve (12) consecutive calendar months, the employing agency or school must apply to the Pension Administrator.

6.4.3 An application for such extension must be received by the Pension Administrator no fewer than thirty (30) days prior to the expiration of prior Disability period.

6.5 Recovery of disability pensioners. In the event a disability pension is terminated because of recovery prior to age sixty (60), the disability pensioner shall become eligible for a vested pension if the disability pensioner’s period of credited service, including the period for which he or she received disability pension payments, meets the service requirements for a vested pension specified in 29 Del.C. §5523 at the time the disability pension commenced. Pensioner's period for which he or she received disability pension payments shall be used for eligibility purposes only and not for computation of monetary pension benefit.

6.6 Disability pensioners who return to active employment. A disability pension constitutes an individual's involuntary retirement; therefore, a disability pensioner who is reinstated as an employee under 29 Del.C. §5501(e), shall be eligible for the disability pensioner’s subsequent retirement to be considered as a regular retirement under the provisions of the pension law in effect at the time of the disability pensioner’s subsequent retirement.

6.7 Return to work following disability with approved medical leave: Upon returning to State employment following a period of approved medical leave, an individual may secure restoration of the individual’s previously canceled pension credits by submitting medical evidence, in a form set forth by the Pension Office, to the Pension Administrator which establishes that the individual’s disability has:

6.7.1 Terminated or;

6.7.2 That the individual authorized to return to employment not more than four (4) months prior to the date of the individual’s actual return; or

6.7.3 That the individual was forced to terminate State employment due to medical disability.

6.8 Return to work following disability with no approved medical leave: Upon returning to State employment following a period of medical disability for which a leave of absence was not granted, an individual may secure restoration of the individual’s previously canceled pension credits by submitting medical evidence, in form set forth by the Pension Office, which establishes the nature of the individual’s disability, the date on which it commenced, and date on which said disability terminated or on which the individual was authorized by the individual’s physician to return to employment.

6.9 Disability service purchase. The actuarial rate to purchase credit under 29 Del.C. §5501(e) shall be adopted by resolution of the Board of Pension Trustees. For disabled employees who desire to purchase service credit under subsection 6.9 of this regulation, the disabled employee’s actual age will be increased by ten (10) years (but not to more than age 65).

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-7.0 Return to work post-retirement

7.1 Definitions.

7.1.1 "Casual/seasonal" The term "casual or seasonal employee" as used in 29 Del.C. §5502(a)(3) shall mean an employee employed by an agency under 29 Del.C. §5903(17) who works less than thirty (30) hours per week, who works thirty (30) hours or more per week for a duration of not longer than twelve (12) months, or who works in a position not defined as a Full-time or Regular Part-Time pension creditable position according to the sections and regulations contained herein.

7.1.2 Gubernatorial appointment. The phrase "An official appointed by the Governor" as used in 29 Del.C. §5502(a)(2), shall mean an official appointed directly by the Governor and confirmed by the Senate.

7.1.3 "Substitute" The term "substitute employee" as used in 29 Del.C. §5502(a)(4) shall mean an employee in a school who is compensated on a daily basis pursuant to 14 Del.C. §1326.

7.1.4 “Temporary employee”. The term "temporary employee" as used in 29 Del.C. §5502(a)(3), shall mean an employee employed in a position for a specific project or task and for a finite period of time that will not exceed twelve (12) months duration. The twelve (12) month period includes employment pursuant to a temporary employment services agreement, or other Indirect Employment with the State as defined in subsection 7.1 of this regulation.

7.2 Separation from service with the state: The IRS requires that any retired employee contemplating reemployment with the State shall have a separation from service from the State for a period of at least six (6) months, if the employee is under the age of 65.

7.3 No pre-arranged agreement to reemploy: Individuals and their employers shall certify, at the time of retirement, that there has been no preexisting Plan between the individual and the employer to return to work with an employer participating in the Plan after such retirement, in a manner as required by the Board.

7.4 Direct employment: Any individual under the age of 65 who contracts directly with an employer participating in the Plan shall jointly certify, in a manner prescribed by the Board, that there has been at least a six (6) month separation of service.

7.5 Indirect employment: Any individual under the age of 65 who is employed by or through any private enterprise that has a contract with an employer participating in the Plan shall jointly certify in a manner prescribed by the Board, that such employment is in compliance with 29 Del.C. §5502.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-8.0 Maximum Income Limits [Compliance with Code §401(a)(17); IRS-approved language]

8.1 Effective with respect to plan years beginning on and after January 1, 1996, and before January 1, 2002, the annual compensation of a plan participant which exceeds $150,000 (as indexed under §401(a)(17)(B) of the Internal Revenue Code of 1986) shall be disregarded for purposes of determining benefits or employee contributions. Effective only for the 1996 plan year, in determining the compensation of an employee eligible for consideration, §414(g)(6) of the Internal Revenue Code of 1986 shall apply, except that in applying such sections, the term "family" shall include only the spouse of the member and any lineal descendants of the employee who have not attained age nineteen (19) before the close of the year.

8.2 Effective with respect to plan years beginning on and after January 1, 2002, the annual compensation of a plan participant which exceeds $200,000, as adjusted for cost-of-living increases in accordance with §401(a)(17)(B) of the Internal Revenue Code of 1986, may not be taken into account in determining benefits or employee contributions for any plan year. Annual compensation means compensation during the Plan year or such other consecutive twelve (12) month period over which compensation is otherwise determined under the Plan (the determination period). The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that begins with or within such calendar year. If the determination period consists of fewer than twelve (12) months, the annual compensation limit is an amount equal to the otherwise applicable annual compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period, and the denominator of which is twelve (12). If the compensation for any prior determination period is taken into account in determining a plan participant's contributions or benefits for the current plan year, the compensation for such prior determination period is subject to the applicable annual compensation limit in effect for that prior period.

8.3 The limits referenced in subsections 8.1 and 8.2 above apply only to years beginning after December 31, 1995, and only to individuals who first become plan participants in plan years beginning on and after January 1, 1996. Individuals who become plan participants of before plan years beginning on and after January 1, 1996, are not subject to the limits of §401(a)(17) of the Internal Revenue Code of 1986. Instead, pursuant to section 13212(d)(3)(A) of the Omnibus Budget Reconciliation Act of 1993 (OBRA), and the regulations issued under that section, the annual compensation in effect under §401(a)(17) of the Internal Revenue Code of 1986 does not apply to any such plan participant in any plan year.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-9.0 Direct Rollover and Trustee to Trustee Transfers [Compliance with Code §401(a)(31); IRS-approved language]

9.1 For purposes of compliance with §401(a)(31) of the Internal Revenue Code, this section applies notwithstanding any contrary provision or retirement law that would otherwise limit a distributee's election to make a rollover. A distributee may elect to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover from the Pension Fund.

9.2 Eligible rollover distribution: An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include:

9.2.1 Any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or the life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more;

9.2.2 Any distribution to the extent such distribution is required under §401(a)(9) of the Internal Revenue Code of 1986;

9.2.3 The portion of any distribution that is not includible in gross income, provided, however, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions that are not includible in gross income, but such portion may be transferred only:

9.2.3.1 To an individual retirement account or annuity described in §408(a) or (b) of the Internal Revenue Code or to a qualified defined contribution plan described in §401(a) of the Internal Revenue Code that agrees to separately account for amounts so transferred (and earnings thereon), including separately accounting for the portion of the distribution that is includible in gross income and the portion of the distribution that is not so includible;

9.2.3.2 On or after January 1, 2007, to a qualified defined benefit plan described in §401(a) of the Internal Revenue Code or to an annuity contract described in §403(b) of the Internal Revenue Code, that agrees to separately account for amounts so transferred (and earnings thereon), including separately accounting for the portion of the distribution that is includible in gross income and the portion of the distribution that is not so includible; or

9.2.3.3 On or after January 1, 2008, to a Roth IRA described in §408A of the Internal Revenue Code; and

9.2.4 Any other distribution which the Internal Revenue Service does not consider eligible for rollover treatment, such as certain corrective distributions necessary to comply with the provisions of §415 of the Internal Revenue Code or any distribution that is reasonably expected to total less than $200 during the year.

9.3 Eligible retirement plan: An eligible retirement plan is any of the following that accepts the distributee's eligible rollover distribution:

9.3.1 An individual retirement account described in §408(a) of the Internal Revenue Code of 1986;

9.3.2 An individual retirement annuity described in §408(b) of the Internal Revenue Code of 1986;

9.3.3 An annuity plan described in §403(a) of the Internal Revenue Code of 1986;

9.3.4 A qualified trust described in §401(a) of the Internal Revenue Code of 1986;

9.3.5 An annuity contract described in §403(b) of the Internal Revenue Code of 1986;

9.3.6 A plan eligible under §457(b) of the Internal Revenue Code of 1986 that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or a political subdivision of a state that agrees to separately account for amounts transferred into the Plan from the Pension Fund;

9.3.7 A Roth IRA described in §408A of the Internal Revenue Code of 1986; or

9.3.8 Effective January 1, 2015, a SIMPLE IRA that has been established for at least two years.

9.4 The definition of eligible rollover distribution also includes a distribution to a surviving spouse, or to a spouse or former spouse who is an alternate payee under a domestic relations order, as defined in §414(p) of the Internal Revenue Code of 1986.

9.5 Distributee: A distributee includes an employee or former employee. It also includes the employee's or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in §414(p) of the Internal Revenue Code of 1986. Effective July 1, 2007, a distributee further includes a nonspouse beneficiary who is a designated beneficiary as defined by §401(a)(9)(E) of the Internal Revenue Code of 1986. However, a nonspouse beneficiary may rollover the distribution only to an individual retirement account or individual retirement annuity established for the purpose of receiving the distribution and the account or annuity will be treated as an "inherited" individual retirement account or annuity.

9.6 Direct Rollover. A direct rollover is a payment by the Pension Fund to the eligible retirement plan specified by the distributee.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-10.0 Maximum Benefit Limits and Maximum Contribution Limits [Compliance with Code §415; IRS-approved language]

10.1 Employee contributions paid to, and retirement benefits paid from, the Pension Fund may not exceed the annual limits on contributions and benefits, respectively, allowed by §415 of the Internal Revenue Code of 1986.

10.2 Compensation: For purposes of applying these limits only and for no other purpose, the definition of compensation where applicable will be compensation actually paid or made available during a limitation year, except as noted below and as permitted by Treasury Regulation §1.415(c)-(2), or successor regulation. Specifically, compensation will be defined as wages within the meaning of section 3401(a) and all other payments of compensation to an employee by an employer for which the employer is required to furnish the employee a written statement under §§6041(d), 6051(a)(3) and 6052 of the Internal Revenue Code of 1986. Compensation will be determined without regard to any sections under Internal Revenue Code §3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in §3401(a)(2) of the Internal Revenue Code of 1986.

10.2.1 However, for limitation years beginning after December 31, 1997, compensation will also include amounts that would otherwise be included in compensation but for an election under §§125(a), 402(e)(3), 402(h)(1)(B), 402(k), or 457(b) of the Internal Revenue Code of 1986. For limitation years beginning after December 31, 2000, compensation will also include any elective amounts that are not includible in the gross income of the employee by reason of §132(f)(4) of the Internal Revenue Code of 1986.

10.2.2 The definition of compensation will exclude employee contributions picked up under §414(h)(2) of the Internal Revenue Code of 1986.

10.2.3 For limitation years beginning on and after January 1, 2007, compensation for the limitation year will also include compensation paid by the later of 2 1/2 months after an employee's severance from employment or the end of the limitation year that includes the date of the employee's severance from employment if:

10.2.3.1 The payment is regular compensation for services during the employee's regular working hours, or compensation for services outside the employee's regular working hours (such as overtime or shift differential), commissions, bonuses or other similar payments, and, absent a severance from employment, the payments would have been paid to the employee while the employee continue in employment with the employer; or

10.2.3.2 The payment is for unused accrued bona fide sick, vacation or other leave that the member would have been able to use if employment had continued; or

10.2.3.3 The payment is pursuant to a nonqualified unfunded deferred compensation plan, but only if the payments would have been paid to the member at the same time if the member had continued employment with the employer and only to the extent that the payment is includible in the member's gross income.

10.2.3.4 Any payments not described above are not considered compensation if paid after severance from employment, even if they are paid within 21/2 months following severance from employment, except for payments to the individual who does not currently perform services for the employer by reason of qualified military service (within the meaning of §414(u)(1) of the Internal Revenue Code of 1986) to the extent these payments do not exceed the amounts the individual would have received if the individual had continued to perform services for the employer rather than entering qualified military service.

10.2.4 Back Pay. Back pay, within the meaning of Treasury Regulation §1.415(c)-2(g)(8), shall be treated as compensation for the limitation year to which the back pay relates to the extent the back pay represents wages and compensation that would otherwise be included under this definition.

10.2.5 Qualified Military Service. An employee who is in qualified military service (within the meaning of §414(u)(1) of the Internal Revenue Code of 1986) shall be treated as receiving compensation from the employer during such period of qualified military service equal to (i) the compensation the employee would have received during such period if the employee were not in qualified military service, determined based on the rate of pay the employee would have received from the employer but for the absence during the period of qualified military service, or (ii) if the compensation the employee would have received during such period was not reasonably certain, the employee's average compensation from the employer during the twelve (12) month period immediately preceding the qualified military service (or, if shorter, the period of employment immediately preceding the qualified military service).

10.3 Basic 415(b) Limitation. Before January 1, 1995, a plan participant may not receive an annual benefit that exceeds the limits specified in §415(b) of the Internal Revenue Code of 1986, subject to the applicable adjustments in that section. On and after January 1, 1995, a plan participant may not receive an annual benefit that exceeds the dollar amount specified in §415(b)(1)(A) of the Internal Revenue Code of 1986, subject to the applicable adjustments in §415(b) of the Internal Revenue Code of 1986. In no event shall a plan participant's annual benefit payable from the Pension Fund in any limitation year be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to §415(d) of the Internal Revenue Code of 1986 and the regulations thereunder.

10.4 On and after January 1, 2009, for purposes of applying the limits under §415(b) of the Internal Revenue Code of 1986, the following will apply:

10.4.1 A plan participant's applicable limit will be applied to the Plan participant's annual benefit in the first limitation year without regard to any automatic cost of living increases;

10.4.2 To the extent the Plan participant's annual benefit equals or exceeds the limit, the Plan participant will no longer be eligible for cost of living increases until such time as the benefit plus the accumulated increases are less than the limit; and

10.4.3 Thereafter, in any subsequent limitation year, the Plan participant's annual benefit including any automatic cost of living increase applicable shall be tested under the then applicable benefit limit including any adjustment to the §415(b)(1)(A) of the Internal Revenue Code of 1986 dollar limit under §415(d) of the Internal Revenue Code of 1986 and the regulations thereunder.

10.5 Non-Straight Life Annuity. If the benefit under the Plan is other than a straight life annuity, then the benefit shall be adjusted so that it is the equivalent of the annual benefit, using factors prescribed in Treasury Regulations. If the form of benefit without regard to the automatic benefit increase feature is not a straight life annuity or a qualified joint and survivor annuity, then the preceding sentence is applied by adjusting the form of benefit to an actuarially equivalent amount (determined using the assumptions specified in Treasury Regulation §1.415(b)-1(c)(2)(ii)) that takes into account the additional benefits under the form of benefit as follows:

10.5.1 For a benefit paid in a form to which §417(e)(3) of the Internal Revenue Code of 1986 does not apply (generally, a monthly benefit), the actuarially equivalent straight life annuity benefit that is the greater of:

10.5.1.1 The annual amount of the straight life annuity (if any) payable to the member under the Plan commencing at the same annuity starting date as the form of benefit to the member, or

10.5.1.2 The annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the form of benefit payable to the member, computed using a 5% interest assumption (or the applicable statutory interest assumption) and (i) for years prior to January 1, 2009, the applicable mortality tables described in Treasury Regulation § 1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Rulings 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in §417(e)(3)(B) of the Internal Revenue Code of 1986 (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing §417(e)(3)(B) of the Internal Revenue Code of 1986).

10.5.2 Lump Sum Benefit. For a benefit paid in a form to which §417(e)(3) of the Internal Revenue Code of 1986 applies (generally, a lump sum benefit), the actuarially equivalent straight life annuity benefit that is the greatest of:

10.5.2.1 The annual amount of the straight life annuity commencing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable, computed using the interest rate and mortality table, or tabular factor, specified in the Plan for actuarial equivalence;

10.5.2.2 The annual amount of the straight life annuity commencing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable, computed using a 5.5 percent interest assumption (or the applicable statutory interest assumption) and (i) for years prior to January 1, 2009, the applicable mortality tables for the distribution under Treasury Regulation § 1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in §417(e)(3)(B) of the Internal Revenue Code of 1986 (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing §417(e)(3)(B) of the Internal Revenue Code of 1986); or

10.5.2.3 The annual amount of the straight life annuity commencing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable (computed using the applicable interest rate for the distribution under Treasury Regulation § 1.417(e)-1(d)(3) (the 30-year Treasury rate (prior to January 1 2007, using the rate in effect for the month prior to retirement, and on and after January 1, 2007, using the rate in effect for the first day of the Plan year with a one-year stabilization period)) and (i) for years prior to January 1, 2009, the applicable mortality tables for the distribution under Treasury Regulation § 1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in §417(e)(3)(B) of the Internal Revenue Code of 1986 (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing §417(e)(3)(B) of the Internal Revenue Code of 1986), divided by 1.05.

10.6 Notwithstanding any other provision of law to the contrary, the Board may modify a request by a plan participant to make a contribution to the Pension Fund if the amount of the contribution would exceed the limits provided in §415 of the Internal Revenue Code of 1986 by using the following methods:

10.6.1 If the law requires a lump sum payment for the purchase of service credit, the Board may establish a periodic payment plan for the Plan participant to avoid a contribution in excess of the limits under §§415(c) or 415(n) of the Internal Revenue Code of 1986.

10.6.2 If payment pursuant to paragraph 4.6.1 will not avoid a contribution in excess of the limits imposed by §§415(c) or 415(n) of the Internal Revenue Code of 1986, the Board may either reduce the Plan participant's contribution to an amount within the limits of that section or refuse the Plan participant's contribution.

10.7 Permissive service credit contributions after December 31, 1997. Effective for permissive service credit contributions made in limitation years beginning after December 31,1997, if a plan participant makes one or more contribution to purchase permissive service credit under the Pension Fund, then the requirements of this section will be treated as met only if:

10.7.1 The requirements of §415(b) of the Internal Revenue Code of 1986 are met, determined by treating the accrued benefit derived from all such contributions as an annual benefit for purposes of §415(b) of the Internal Revenue Code of 1986; or

10.7.2 The requirements of §415(c) of the Internal Revenue Code of 1986 are met, determined by treating all such contributions as annual additions for purposes of §415(c) of the Internal Revenue Code of 1986.

10.7.3 For purposes of applying subsection 10.7.1 of this regulation the Pension Fund will not fail to meet the reduced limit under §415(b)(2)(C) of the Internal Revenue Code of 1986 solely by reason of subsection 10.7 of this regulation, and for purposes of applying subsection 4.7.2 the Pension Fund will not fail to meet the percentage limitation under §415(c)(1)(B) of the Internal Revenue Code of 1986 solely by reason of subsection 10.7 of this regulation.

10.7.4 For purposes of subsection 10.7 of this regulation the term "permissive service credit" means service credit that is:

10.7.4.1 Recognized by the Pension Fund for purposes of calculating a plan participant's benefit under the Pension Fund,

10.7.4.2 Which such plan participant has not received under the Pension Fund, and

10.7.4.4 Which such plan participant may receive only by making a voluntary additional contribution, in an amount determined under the Pension Fund, which does not exceed the amount necessary to fund the benefit attributable to such service credit.

10.8 Permissive service credit contributions after December 31, 1997. Effective for permissive service credit contributions made in limitation years beginning after December 31, 1997, such term may include service credit for periods for which there is no performance of service, and, notwithstanding subsection 10.7.4.3 of this regulation, may include service credited in order to provide an increased benefit for service credit which a plan participant is receiving under the Pension Fund.

10.8.1 The Pension Fund will fail to meet the requirements of subsection 10.8 of this regulation if:

10.8.1.1 More than five (5) years of nonqualified service credit are taken into account for purposes of subsection 10.7.6 of this regulation, or

10.8.1.2 Any nonqualified service credit is taken into account under subsection 10.8 of this regulation before the Plan participant has at least five (5) years of participation under the Pension Fund.

10.8.2 For purposes of subsection 10.8 of this regulation, effective for permissive service credit contributions made in limitation years beginning after December 31, 1997, the term "nonqualified service credit" means permissive service credit other than that allowed with respect to:

10.8.2.1 Service (including parental, medical, sabbatical, and similar leave) as an employee of the Government of the United States, any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing (other than military service or service for credit which was obtained as a result of a repayment described in §415(k)(3)) of the Internal Revenue Code of 1986;

10.8.2.2 Service (including parental, medical, sabbatical, and similar leave) as an employee (other than as an employee described in clause (i)) of an education organization described in §170(b)(1)(A)(ii) of the Internal Revenue Code of 1986 which is a public, private, or sectarian school which provides elementary or secondary education (through Grade 12), or a comparable level of education, as determined under the applicable law of the jurisdiction in which the service was performed;

10.8.2.3 Service as an employee of an association of employees who are described in subsection 10.8.1 of this regulation; or

10.8.2.4 Military service (other than qualified military service under §414(u)) of the Internal Revenue Code of 1986 recognized by such governmental plan.

10.8.3 In the case of service described in subsections 10.8.2.1, 10.8.2.2 or 10.8.2.3 of this regulation, such service will be nonqualified service if recognition of such service would cause a plan participant to receive a retirement benefit for the same service under more than one plan.

10.8.4 In the case of a trustee-to-trustee transfer after December 31, 2001, to which §§403(b)(13)(A) or 457(e)(17)(A) of the Internal Revenue Code of 1986 applies (without regard to whether the transfer is made between plans maintained by the same employer):

10.8.4.1 The limitations of subsection 10.8 of this regulation will not apply in determining whether the transfer is for the purchase of permissive service credit; and

10.8.4.2 The distribution sections applicable under federal law to the Pension Fund will apply to such amounts and any benefits attributable to such amounts.

10.8.5 For an eligible plan participant, the limitation of §415(c)(1) of the Internal Revenue Code of 1986 shall not be applied to reduce the amount of permissive service credit which may be purchased to an amount less than the amount which was allowed to be purchased under the terms of the Plan as in effect on August 5, 1997. For purposes of subsection 10.8.5, an eligible plan participant is an individual who first became a plan participant in the Pension Fund before January 1, 1998.

10.9 For purposes of §415 of the Internal Revenue Code of 1986, the limitation year is January 1 through December 31.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-11.0 Military service [Compliance with Code §§414(u) and 401(a)(37) and the HEART Act; IRS-approved language]

11.1 Notwithstanding any other provision of law, contributions, benefits and service credit with respect to qualified military service are governed by §414(u) of the Internal Revenue Code of 1986 and the Uniformed Services Employment and Reemployment Rights Act of 1994. The Military Service credit provisions of this section are to be interpreted in accordance 29 Del.C. §5501(e), so as not to diminish the rights granted under that section.

11.2 To the extent required by §414(u)(12) of the Internal Revenue Code of 1986, an individual receiving differential wage payments (as defined under §3401(h)(2) of the Internal Revenue Code of 1986) from an employer shall be treated as employed by that employer, and the differential wage payment shall be treated as compensation for purposes of applying the limits on annual additions under §415(c) of the Internal Revenue Code of 1986. This provision shall be applied to all similarly situated individuals in a reasonably equivalent manner.

11.3 With respect to deaths incurred while a member is performing qualified military service (as defined in Chapter 43 of Title 38, United States Code), to the extent required by §401(a)(37) of the Internal Revenue Code of 1986, survivors of a member in a State or local retirement or pension system, are entitled to any additional benefits that the system would provide if the member had resumed employment and then died, such as accelerated vesting or survivor benefits that are contingent on the member's death while employed. In any event, a deceased member's period of qualified military service must be counted for vesting purposes.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-12.0 Vesting [Compliance with Code §401(a)(7); IRS-approved language]

12.1 Plan terminations. In the event of a full or partial termination of, or a complete discontinuance of employer contributions to, the Delaware State Retirement Fund, all accrued benefits which have been vested according to the provisions of 29 Del.C. §5523, shall be 100% vested and nonforfeitable to the extent funded and to the extent required by federal law.

12.2 A Plan participant shall be 100% vested in all Plan benefits upon attainment of the Plan's age and service requirements for the Plan's normal retirement benefit in 29 Del.C. §5522(a).

12.3 A Plan participant shall be 100% vested in the Participant’s employee contributions.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-13.0 Use of forfeitures [Compliance with Code §401(a)(8); IRS-approved language]

In conformity with §401(a)(8) of the Internal Revenue Code of 1986, forfeitures of benefits by members or former members of the Plan will not be used to pay benefit increases. However, such forfeitures shall be used to reduce employer contributions.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-14.0 Normal Retirement Age

14.1 Normal Retirement Age for State Employees Pension Plan. Normal Retirement Age, for the purposes of the State Employees’ Pension Plan, will be the date the employee becomes eligible for a service pension not reduced because of the employee's age, pursuant to 29 Del.C. §5522(a) or (b).

14.2 Normal Retirement Age of 457(b) Plan. The Normal Retirement Age for purposes of §457(b) of the Internal Revenue Code of 1986 to the extent the State Employees’ Pension Plan's normal retirement age is referenced in the Delaware Deferred Compensation Plans (457 (b)) will be the earliest date when the employee has satisfied the requirements of 29, Del.C. §5522(a)(1), (a)(2), or (a)(3).

14.3 For purposes of §402(l) of the Internal Revenue Code of 1986, the Normal Retirement Age will be the earliest date when the employee has satisfied the requirements of 29 Del.C. §5522(a)(1), (a)(2), or (a)(3).

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-15.0 Prohibited transactions [Compliance with Code §503(b); IRS-approved language]

The board may not engage in a transaction prohibited by §503(b) of the Internal Revenue Code of 1986.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-16.0 Qualified Excess Benefit Arrangement [Compliance with Code §415(m); IRS-approved language]

Pursuant to the enactment of any necessary legislative authority, the Board may establish a qualified excess benefit arrangement (QEBA) under §415(m) of the Internal Revenue Code of 1986 pursuant to the terms of a separate plan document adopted by the Board.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2002-17.0 Civil unions and DOMA [Compliance with United States v. Windsor; IRS-approved language.]

In applying the provisions of 13 Del.C. §§212 and 214, the Board shall interpret the term "spouse" in the provisions of Delaware law that apply to each state pension and benefit set forth in 29 Del.C. §8308(b) in accordance with the federal Defense of Marriage Act to the extent required by that law, federal preemption principles, and guidance issued by the Internal Revenue Service and to the extent necessary in order to preserve the qualified governmental plan status of each such state pension plan and benefit under §§401(a) and 414(d) of the Internal Revenue Code of 1986 or such other provision of the Internal Revenue Code as applicable. This provision shall apply in the same manner to the terms husband, wife, surviving spouse, survivor, widow, widower, and other terms, whether or not gender-specific, that denote or depend upon a spousal relationship.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

2003 State Judiciary Pension Plan

19 Del. Admin. Code § 2003 State Judiciary Pension Plan

Rules and Regulations as Adopted by the State Board of Pension Trustees

(Proposed June 1, 2021)

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-1.0 Plan Year

The Plan Year for the Pension Fund is the twelve (12) month period beginning July 1.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-2.0 Pension Administrator

The Executive Secretary appointed by The Board of Pension Trustees pursuant to 29 Del.C. § 8308 (2) shall be the Pension Administrator.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-3.0 Credited Service

3.1 Definitions:

3.1.1 "Application for benefits" as used in 29 Del.C. §5606, shall mean the date on which the signed written application and other necessary documentation is received by the Office of Pensions or the Office of the Court of jurisdiction.

3.1.2 "Compensation" as used in 29 Del.C. Ch. 56 shall mean total compensation prior to any payroll deductions, including but not limited to, deductions for contributions to the State's Deferred Compensation Program pursuant to 29 Del.C. 60A. Compensation shall not include payments, which in the nature of reimbursements or allowances for expenses.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-4.0 Distribution of Benefits

4.1 Effective date of pensions.

4.1.1 Pension beneficiary: Beginning with the month of May 1972, all pensions shall become effective on the first day of the month. Under 29 Del.C. §5606(a), a monthly benefit shall not be payable for any period earlier than the first day of the second month preceding the date on which application for such benefit is filed.

4.1.2 Deceased pensioner monthly benefit and survivor's pension: Beginning with the month of May 1972, the full pension benefit shall be payable for the month in which a pensioner's death occurs and shall be payable to the pensioner or the pensioner’s estate. Survivor's monthly pension benefit, if any, shall become effective the first day of the next month following the month in which a pensioner's death occurs.

4.3 Withdrawal benefits. Employees terminating employment who are not eligible for a service or disability pension shall be paid their accumulated contributions with interest pursuant to 29 Del.C. §5608. Such payments shall not be made until the Office of Pensions has verified the employee's total pension contributions. The interest rate to be paid on such payments shall be adopted by resolution of the Board.

4.4 Determination of survivor benefits

4.4.1 Child with permanent disability. In order to establish eligibility for a survivor's pension for a child who "has a permanent disability as the result of disability which began before the child attained age 18" as set forth in 29 Del.C. §5614(d)(2)c. and (e)(3), the following documentation, in the form prescribed by the Board, shall be provided:

4.4.1.1 That the child is unmarried and the child is dependent upon the parents or the child is unable to do any substantial, gainful work; and

4.4.1.2 An opinion from a qualified physician which finds that the child has a medically determined physical or mental impairment that renders the child permanently disabled, and unable to do any substantial and gainful work and that such permanent disability began before the age of 18 years, or a determination that the child is disabled for the purposes of Social Security SSI.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-5.0 Distribution Requirements to Comply with IRS Code §401(a)(9) [Compliance with Code §401(a)(9)(RMDs); IRS-approved language]

5.1 Distributions from the Pension Trust may be made only upon the death of a Plan participant, termination of service by voluntary resignation, attainment of normal retirement age under the terms of the Plan, qualification for a disability pension under the terms of the Plan, or attainment of the age of 70 ½ years (if the Plan participant was born before July 1, 1949) or after age 72 (if the Plan participant was born after June 30, 1949) except for an employee in active status.

5.3 Notwithstanding any other provision of these rules and regulations, the Pension Fund is subject to the following provisions:

5.3.1 Benefits must begin by the required beginning date, which is the later of April 1 of the calendar year following the calendar year in which the Plan participant reaches 70 ½ years of age (if the Plan participant was born before July 1, 1949) or after age 72 (if the Plan participant was born after June 30, 1949) or April 1 of the calendar year following the calendar year in which the Plan participant terminates employment. If a plan participant fails to apply for retirement benefits by April 1 of the calendar year following the calendar year in which he or she reaches 70 ½ years of age (if the Plan participant was born before July 1, 1949) or after age 72 (if the Plan participant was born after June 30, 1949) or April 1 of the calendar year following the calendar year in which he or she terminates employment, whichever is later, the Board will begin distributing the benefit as required by this section.

5.3.3 The life expectancy of a Plan participant, the Plan participant's spouse or the Plan participant's survivor under state law may not be recalculated after the initial determination for purposes of determining benefits.

5.3.5 If a Plan participant dies before required distribution of the Plan participant's benefits has begun, the Plan participant's entire interest be distributed as follows:

5.3.5.3 Distributed by December 31 of the calendar year containing the fifth anniversary of the Plan participant's death.

5.3.7 The death and disability benefits provided by Pension Fund are limited by the incidental benefit rule set forth in Treasury Regulation §1.401-1(b)(1)(ii) or any successor regulation thereto.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-6.0 Return to Work Post-retirement

6.1 Separation from service with the state: The IRS requires that any retired employee contemplating reemployment with the State shall have a separation from service from the State for a period of at least six (6) months, if the employee is under the age of 65.

6.2 No pre-arranged agreement to reemploy: Individuals and their employers shall certify, at the time of retirement, that there has been no preexisting Plan between the individual and the employer to return to work with an employer participating in the Plan after such retirement, in a manner as required by the Board.

6.3 Direct employment: Any individual under the age of 65 who contracts directly with an employer participating in the Plan shall jointly certify, in a manner prescribed by the Board, that there has been at least a six (6) month separation of service.

6.4 Indirect employment: Any individual under the age of 65 who is employed by or through any private enterprise that has a contract with an employer participating in the Plan shall jointly certify in a manner prescribed by the Board, that such employment is in compliance with 29 Del.C. §5502.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-7.0 Maximum Income Limits [Compliance with Code §401(a)(17); IRS-approved language]

7.1 Effective with respect to plan years beginning on and after January 1, 1996, and before January 1, 2002, the annual compensation of a plan participant which exceeds $150,000 (as indexed under §401(a)(17)(B) of the Internal Revenue Code of 1986) shall be disregarded for purposes of determining benefits or employee contributions. Effective only for the 1996 plan year, in determining the compensation of an employee eligible for consideration, §414(g)(6) of the Internal Revenue Code of 1986 shall apply, except that in applying such rules, the term "family" shall include only the spouse of the member and any lineal descendants of the employee who have not attained age nineteen (19) before the close of the year.

7.2 Effective with respect to plan years beginning on and after January 1, 2002, the annual compensation of a plan participant which exceeds $200,000, as adjusted for cost-of-living increases in accordance with §401(a)(17)(B) of the Internal Revenue Code of 1986, may not be taken into account in determining benefits or employee contributions for any plan year. Annual compensation means compensation during the Plan year or such other consecutive twelve (12) month period over which compensation is otherwise determined under the Plan (the determination period). The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that begins with or within such calendar year. If the determination period consists of fewer than twelve (12) months, the annual compensation limit is an amount equal to the otherwise applicable annual compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period, and the denominator of which is twelve (12). If the compensation for any prior determination period is taken into account in determining a plan participant's contributions or benefits for the current plan year, the compensation for such prior determination period is subject to the applicable annual compensation limit in effect for that prior period.

7.3 The limits referenced in subsections 8.1 and 8.2 above apply only to years beginning after December 31, 1995, and only to individuals who first become plan participants in plan years beginning on and after January 1, 1996. Individuals who become plan participants of before plan years beginning on and after January 1, 1996, are not subject to the limits of §401(a)(17) of the Internal Revenue Code of 1986. Instead, pursuant to section 13212(d)(3)(A) of the Omnibus Budget Reconciliation Act of 1993 (OBRA), and the regulations issued under that section, the annual compensation in effect under section 401(a)(17) of the Internal Revenue Code of 1986 does not apply to any such plan participant in any plan year.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-8.0 Direct Rollover and Trustee to Trustee Transfers [Compliance with Code §401(a)(31); IRS-approved language]

8.1 For purposes of compliance with §401(a)(31) of the Internal Revenue Code, this section applies notwithstanding any contrary provision or retirement law that would otherwise limit a distributee's election to make a rollover. A distributee may elect to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover from the Pension Fund.

8.2 Eligible rollover distribution: An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include:

8.2.1 Any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or the life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more;

8.2.2 Any distribution to the extent such distribution is required under §401(a)(9) of the Internal Revenue Code of 1986;

8.2.3 The portion of any distribution that is not includible in gross income, provided, however, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions that are not includible in gross income, but such portion may be transferred only:

8.2.3.1 To an individual retirement account or annuity described in §408(a) or (b) of the Internal Revenue Code or to a qualified defined contribution plan described in §401(a) of the Internal Revenue Code that agrees to separately account for amounts so transferred (and earnings thereon), including separately accounting for the portion of the distribution that is includible in gross income and the portion of the distribution that is not so includible;

8.2.3.2 On or after January 1, 2007, to a qualified defined benefit plan described in §401(a) of the Internal Revenue Code or to an annuity contract described in §403(b) of the Internal Revenue Code, that agrees to separately account for amounts so transferred (and earnings thereon), including separately accounting for the portion of the distribution that is includible in gross income and the portion of the distribution that is not so includible; or

8.2.3.3 On or after January 1, 2008, to a Roth IRA described in §408A of the Internal Revenue Code; and

8.2.4 Any other distribution which the Internal Revenue Service does not consider eligible for rollover treatment, such as certain corrective distributions necessary to comply with the provisions of §415 of the Internal Revenue Code or any distribution that is reasonably expected to total less than $200 during the year.

8.3 Eligible retirement plan: An eligible retirement plan is any of the following that accepts the distributee's eligible rollover distribution:

8.3.1 An individual retirement account described in §408(a) of the Internal Revenue Code of 1986;

8.3.2 An individual retirement annuity described in §408(b) of the Internal Revenue Code of 1986;

8.3.3 An annuity plan described in §403(a) of the Internal Revenue Code of 1986;

8.3.4 A qualified trust described in §401(a) of the Internal Revenue Code of 1986;

8.3.5 An annuity contract described in §403(b) of the Internal Revenue Code of 1986;

8.3.6 A plan eligible under §457(b) of the Internal Revenue Code of 1986 that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or a political subdivision of a state that agrees to separately account for amounts transferred into the Plan from the Pension Fund;

8.3.7 A Roth IRA described in §408A of the Internal Revenue Code of 1986; or

8.3.8 Effective January 1, 2015, a SIMPLE IRA that has been established for at least two years.

8.4 The definition of eligible rollover distribution also includes a distribution to a surviving spouse, or to a spouse or former spouse who is an alternate payee under a domestic relations order, as defined in §414(p) of the Internal Revenue Code of 1986.

8.5 Distributee: A distributee includes an employee or former employee. It also includes the employee's or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in §414(p) of the Internal Revenue Code of 1986. Effective July 1, 2007, a distributee further includes a nonspouse beneficiary who is a designated beneficiary as defined by §401(a)(9)(E) of the Internal Revenue Code of 1986. However, a nonspouse beneficiary may rollover the distribution only to an individual retirement account or individual retirement annuity established for the purpose of receiving the distribution and the account or annuity will be treated as an "inherited" individual retirement account or annuity.

8.6 Direct Rollover. A direct rollover is a payment by the Pension Fund to the eligible retirement plan specified by the distributee.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-9.0 Maximum Benefit Limits and Maximum Contribution Limits [Compliance with Code §415; IRS-approved language]

9.1 Employee contributions paid to, and retirement benefits paid from, the Pension Fund may not exceed the annual limits on contributions and benefits, respectively, allowed by §415 of the Internal Revenue Code of 1986.

9.2 Compensation: For purposes of applying these limits only and for no other purpose, the definition of compensation where applicable will be compensation actually paid or made available during a limitation year, except as noted below and as permitted by Treasury Regulation §1.415(c)-(2), or successor regulation. Specifically, compensation will be defined as wages within the meaning of section 3401(a) and all other payments of compensation to an employee by an employer for which the employer is required to furnish the employee a written statement under sections 6041(d), 6051(a)(3) and 6052 of the Internal Revenue Code of 1986. Compensation will be determined without regard to any rules under Internal Revenue Code §3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in §3401(a)(2) of the Internal Revenue Code of 1986.

9.2.1 However, for limitation years beginning after December 31, 1997, compensation will also include amounts that would otherwise be included in compensation but for an election under §§125(a), 402(e)(3), 402(h)(1)(B), 402(k), or 457(b) of the Internal Revenue Code of 1986. For limitation years beginning after December 31, 2000, compensation will also include any elective amounts that are not includible in the gross income of the employee by reason of §132(f)(4) of the Internal Revenue Code of 1986.

9.2.2 The definition of compensation will exclude employee contributions picked up under §414(h)(2) of the Internal Revenue Code of 1986.

9.2.3 For limitation years beginning on and after January 1, 2007, compensation for the limitation year will also include compensation paid by the later of 2 ½ months after an employee's severance from employment or the end of the limitation year that includes the date of the employee's severance from employment if:

9.2.3.1 The payment is regular compensation for services during the employee's regular working hours, or compensation for services outside the employee's regular working hours (such as overtime or shift differential), commissions, bonuses or other similar payments, and, absent a severance from employment, the payments would have been paid to the employee while the employee continue in employment with the employer; or

9.2.3.2 The payment is for unused accrued bona fide sick, vacation, or other leave that the member would have been able to use if employment had continued; or

9.2.3.3 The payment is pursuant to a nonqualified unfunded deferred compensation plan, but only if the payments would have been paid to the member at the same time if the member had continued employment with the employer and only to the extent that the payment is includible in the member's gross income.

9.2.3.4 Any payments not described above are not considered compensation if paid after severance from employment, even if they are paid within 2 ½ months following severance from employment, except for payments to the individual who does not currently perform services for the employer by reason of qualified military service (within the meaning of §414(u)(1) of the Internal Revenue Code of 1986) to the extent these payments do not exceed the amounts the individual would have received if the individual had continued to perform services for the employer rather than entering qualified military service.

9.2.4 Back Pay. Back pay, within the meaning of Treasury Regulation §1.415(c)-2(g)(8), shall be treated as compensation for the limitation year to which the back pay relates to the extent the back pay represents wages and compensation that would otherwise be included under this definition.

9.2.5 Qualified Military Service. An employee who is in qualified military service (within the meaning of §414(u)(1) of the Internal Revenue Code of 1986) shall be treated as receiving compensation from the employer during such period of qualified military service equal to (i) the compensation the employee would have received during such period if the employee were not in qualified military service, determined based on the rate of pay the employee would have received from the employer but for the absence during the period of qualified military service, or (ii) if the compensation the employee would have received during such period was not reasonably certain, the employee's average compensation from the employer during the twelve (12) month period immediately preceding the qualified military service (or, if shorter, the period of employment immediately preceding the qualified military service).

9.3 Basic 415(b) Limitation. Before January 1, 1995, a plan participant may not receive an annual benefit that exceeds the limits specified in §415(b) of the Internal Revenue Code of 1986, subject to the applicable adjustments in that section. On and after January 1, 1995, a plan participant may not receive an annual benefit that exceeds the dollar amount specified in §415(b)(1)(A) of the Internal Revenue Code of 1986, subject to the applicable adjustments in §415(b) of the Internal Revenue Code of 1986. In no event shall a plan participant's annual benefit payable from the Pension Fund in any limitation year be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to §415(d) of the Internal Revenue Code of 1986 and the regulations thereunder.

9.4 On and after January 1, 2009, for purposes of applying the limits under §415(b) of the Internal Revenue Code of 1986, the following will apply:

9.4.1 A plan participant's applicable limit will be applied to the Plan participant's annual benefit in the first limitation year without regard to any automatic cost of living increases;

9.4.2 To the extent the Plan participant's annual benefit equals or exceeds the limit, the Plan participant will no longer be eligible for cost of living increases until such time as the benefit plus the accumulated increases are less than the limit; and

9.4.3 Thereafter, in any subsequent limitation year, the Plan participant's annual benefit including any automatic cost of living increase applicable shall be tested under the then applicable benefit limit including any adjustment to the §415(b)(1)(A) of the Internal Revenue Code of 1986 dollar limit under §415(d) of the Internal Revenue Code of 1986 and the regulations thereunder.

9.5 Non-Straight Life Annuity. If the benefit under the Plan is other than a straight life annuity, then the benefit shall be adjusted so that it is the equivalent of the annual benefit, using factors prescribed in Treasury Regulations. If the form of benefit without regard to the automatic benefit increase feature is not a straight life annuity or a qualified joint and survivor annuity, then the preceding sentence is applied by adjusting the form of benefit to an actuarially equivalent amount (determined using the assumptions specified in Treasury Regulation §1.415(b)-1(c)(2)(ii)) that takes into account the additional benefits under the form of benefit as follows:

9.5.1 For a benefit paid in a form to which §417(e)(3) of the Internal Revenue Code of 1986 does not apply (generally, a monthly benefit), the actuarially equivalent straight life annuity benefit that is the greater of:

9.5.1.1 The annual amount of the straight life annuity (if any) payable to the member under the Plan commencing at the same annuity starting date as the form of benefit to the member; or

9.5.1.2 The annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the form of benefit payable to the member, computed using a 5% interest assumption (or the applicable statutory interest assumption) and (i) for years prior to January 1, 2009, the applicable mortality tables described in Treasury Regulation § 1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Rulings 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in §417(e)(3)(B) of the Internal Revenue Code of 1986 (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing §417(e)(3)(B) of the Internal Revenue Code of 1986).

9.5.2 Lump Sum Benefit. For a benefit paid in a form to which §417(e)(3) of the Internal Revenue Code of 1986 applies (generally, a lump sum benefit), the actuarially equivalent straight life annuity benefit that is the greatest of:

9.5.2.1 The annual amount of the straight life annuity commencing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable, computed using the interest rate and mortality table, or tabular factor, specified in the Plan for actuarial equivalence;

9.5.2.2 The annual amount of the straight life annuity commencing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable, computed using a 5.5 percent interest assumption (or the applicable statutory interest assumption) and (i) for years prior to January 1, 2009, the applicable mortality tables for the distribution under Treasury Regulation § 1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in §417(e)(3)(B) of the Internal Revenue Code of 1986 (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing §417(e)(3)(B) of the Internal Revenue Code of 1986); or

9.5.2.3 The annual amount of the straight life annuity commencing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable (computed using the applicable interest rate for the distribution under Treasury Regulation § 1.417(e)-1(d)(3) (the 30-year Treasury rate (prior to January 1 2007, using the rate in effect for the month prior to retirement, and on and after January 1, 2007, using the rate in effect for the first day of the Plan year with a one-year stabilization period)) and (i) for years prior to January 1, 2009, the applicable mortality tables for the distribution under Treasury Regulation §1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in §417(e)(3)(B) of the Internal Revenue Code of 1986 (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing §417(e)(3)(B) of the Internal Revenue Code of 1986), divided by 1.05.

9.6 Notwithstanding any other provision of law to the contrary, the Board may modify a request by a plan participant to make a contribution to the Pension Fund if the amount of the contribution would exceed the limits provided in §415 of the Internal Revenue Code of 1986 by using the following methods:

9.6.1 If the law requires a lump sum payment for the purchase of service credit, the Board may establish a periodic payment plan for the Plan participant to avoid a contribution in excess of the limits under §§415(c) or 415(n) of the Internal Revenue Code of 1986.

9.6.2 If payment pursuant to subsection 4.6.1 will not avoid a contribution in excess of the limits imposed by §§415(c) or 415(n) of the Internal Revenue Code of 1986, the Board may either reduce the Plan participant's contribution to an amount within the limits of that section or refuse the Plan participant's contribution.

9.7 Permissive Service Credit Contributions after December 31, 1997. Effective for permissive service credit contributions made in limitation years beginning after December 31,1997, if a plan participant makes one or more contribution to purchase permissive service credit under the Pension Fund, then the requirements of this section will be treated as met only if:

9.7.1 The requirements of §415(b) of the Internal Revenue Code of 1986 are met, determined by treating the accrued benefit derived from all such contributions as an annual benefit for purposes of §415(b) of the Internal Revenue Code of 1986, or

9.7.2 The requirements of §415(c) of the Internal Revenue Code of 1986 are met, determined by treating all such contributions as annual additions for purposes of §415(c) of the Internal Revenue Code of 1986.

9.7.3 For purposes of applying subsection 9.7.1 of this regulation the Pension Fund will not fail to meet the reduced limit under §415(b)(2)(C) of the Internal Revenue Code of 1986 solely by reason of this subsection 9.7 of this regulation, and for purposes of applying subsection 9.2.2, the Pension Fund will not fail to meet the percentage limitation under §415(c)(1)(B) of the Internal Revenue Code of 1986 solely by reason of subsection 9.7 of this regulation.

9.7.4 For purposes of subsections 9.7 and 9.8 of this regulation, the term "permissive service credit" means service credit that is:

9.7.4.1 Recognized by the Pension Fund for purposes of calculating a plan participant's benefit under the Pension Fund,

9.7.4.2 Which such plan participant has not received under the Pension Fund, and

9.7.4.3 Which such plan participant may receive only by making a voluntary additional contribution, in an amount determined under the Pension Fund, which does not exceed the amount necessary to fund the benefit attributable to such service credit.

9.8 Permissive Service Credit Contributions after December 31, 1997. Effective for permissive service credit contributions made in limitation years beginning after December 31, 1997, such term may include service credit for periods for which there is no performance of service, and, notwithstanding subsection 9.7.4.3 of this regulation, may include service credited in order to provide an increased benefit for service credit which a plan participant is receiving under the Pension Fund.

9.8.1 The Pension Fund will fail to meet the requirements of this subsection 9.8 of this regulation if:

9.8.1.1 More than five (5) years of nonqualified service credit are taken into account for purposes of this subsection 9.8 of this regulation; or

9.8.1.2 Any nonqualified service credit is taken into account under this subsection 9.8 of this regulation before the Plan participant has at least five (5) years of participation under the Pension Fund.

9.8.2 For purposes of subsection 9.8 of this regulation, effective for permissive service credit contributions made in limitation years beginning after December 31, 1997, the term "nonqualified service credit" means permissive service credit other than that allowed with respect to:

9.8.2.1 Service (including parental, medical, sabbatical, and similar leave) as an employee of the Government of the United States, any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing (other than military service or service for credit which was obtained as a result of a repayment described in §415(k)(3)) of the Internal Revenue Code of 1986;

9.8.2.2 Service (including parental, medical, sabbatical, and similar leave) as an employee (other than as an employee described in clause (i)) of an education organization described in §170(b)(1)(A)(ii) of the Internal Revenue Code of 1986 which is a public, private, or sectarian school which provides elementary or secondary education (through Grade 12), or a comparable level of education, as determined under the applicable law of the jurisdiction in which the service was performed;

9.8.2.3 Service as an employee of an association of employees who are described in Rule 9.8.2.1; or

9.8.2.4 Military service (other than qualified military service under §414(u) of the Internal Revenue Code of 1986) recognized by such governmental plan.

9.8.3 In the case of service described in subsections 9.8.2.1, 9.8.2.2, and 9.8.2.3, such service will be nonqualified service if recognition of such service would cause a plan participant to receive a retirement benefit for the same service under more than one plan.

9.8.4 In the case of a trustee-to-trustee transfer after December 31, 2001, to which §403(b)(13)(A) or 457(e)(17)(A) of the Internal Revenue Code of 1986 applies (without regard to whether the transfer is made between plans maintained by the same employer):

9.8.4.1 The limitations of subsection 9.8.4 will not apply in determining whether the transfer is for the purchase of permissive service credit; and

9.8.4.2 The distribution rules applicable under federal law to the Pension Fund will apply to such amounts and any benefits attributable to such amounts.

9.8.5 For an eligible plan participant, the limitation of §415(c)(1) of the Internal Revenue Code of 1986 shall not be applied to reduce the amount of permissive service credit which may be purchased to an amount less than the amount which was allowed to be purchased under the terms of the Delaware Code as in effect on August 5, 1997. For purposes of subsection 4.8.5 of this regulation, an eligible plan participant is an individual who first became a plan participant in the Pension Fund before January 1, 1998.

9.9 For purposes of §415 of the Internal Revenue Code of 1986, the limitation year is January 1 through December 31.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-10.0 Military Service [Compliance with Code §§414(u) and 401(a)(37) and the HEART Act; IRS-approved language]

10.1 Notwithstanding any other provision of law, contributions, benefits and service credit with respect to qualified military service are governed by §414(u) of the Internal Revenue Code of 1986 and the Uniformed Services Employment and Reemployment Rights Act of 1994. The Military Service credit provisions of this section are to be so as not to diminish the rights granted under that section.

10.2 To the extent required by §414(u)(12) of the Internal Revenue Code of 1986, an individual receiving differential wage payments (as defined under §3401(h)(2) of the Internal Revenue Code of 1986) from an employer shall be treated as employed by that employer, and the differential wage payment shall be treated as compensation for purposes of applying the limits on annual additions under §415(c) of the Internal Revenue Code of 1986. This provision shall be applied to all similarly situated individuals in a reasonably equivalent manner.

10.3 With respect to deaths incurred while a member is performing qualified military service (as defined in chapter 43 of title 38, United States Code), to the extent required by §401(a)(37) of the Internal Revenue Code of 1986, survivors of a member in a State or local retirement or pension system, are entitled to any additional benefits that the system would provide if the member had resumed employment and then died, such as accelerated vesting or survivor benefits that are contingent on the member's death while employed. In any event, a deceased member's period of qualified military service must be counted for vesting purposes.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-11.0 Vesting [Compliance with Code §401(a)(7); IRS-approved language]

11.1 Plan Terminations. In the event of a full or partial termination of, or a complete discontinuance of employer contributions to, the Delaware State Retirement Fund, all accrued benefits which have been vested according to the provisions of 29 Del.C. Ch. 56, shall be 100% vested and nonforfeitable to the extent funded and to the extent required by federal law.

11.2 A Plan participant shall be 100% vested in all Plan benefits upon attainment of the Plan's age and service requirements for the Plan's normal retirement benefit in 29 Del.C. Ch. 56.

11.3 A Plan participant shall be 100% vested in his or her employee contributions.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-12.0 Use of forfeitures [Compliance with Code §401(a)(8); IRS-approved language]

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-13.0 Normal Retirement Age

13.1 Normal Retirement Age for State Judiciary Pension Plan. Normal Retirement Age, for the purposes of the State Judiciary Pension Plan, will be the date the employee becomes eligible for a service pension not reduced because of the employee's age, pursuant to 29 Del.C. §5602(a) or (b), or 5612(a).

13.2 Normal Retirement Age of 457(b) Plan. The Normal Retirement Age for purposes of §457(b) of the Internal Revenue Code of 1986 to the extent the State Judiciary Pension Plan's normal retirement age is referenced in the Delaware Deferred Compensation Plans (457 (b)) will be the earliest date when the employee has satisfied the requirements of 29 Del.C. §5602(a) or (b), or 5612(a).

13.3 For purposes of §402(l) of the Internal Revenue Code of 1986, the Normal Retirement Age will be the earliest date when the employee has satisfied the requirements of 29 Del.C. §5602(a) or (b), or 5612(a).

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-14.0 Prohibited Transactions [Compliance with Code §503(b); IRS-approved language]

The board may not engage in a transaction prohibited by section 503(b) of the Internal Revenue Code of 1986.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-15.0 Qualified Excess Benefit Arrangement [Compliance with § 415(m); IRS-approved language]

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2003-16.0 Civil Unions and DOMA [Compliance with United States v. Windsor; IRS-approved language.]

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

2004 State Police Pension Plan

19 Del. Admin. Code § 2004 State Police Pension Plan

Rules and Regulations As Adopted by the State Board of Pension Trustees

(Proposed June 1, 2021)

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-1.0 Plan Year

The Plan Year for the Pension Fund is the twelve (12) month period beginning July 1.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-2.0 Pension Administrator

The Executive Secretary appointed by The Board of Pension Trustees pursuant to 29 Del.C. §8308(2) shall be the Pension Administrator.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-3.0 Credited Service

3.1 Definitions:

3.1.1 "Application for benefits" as used in 11 Del.C. §8376, means the date on which the signed written application and other necessary documentation is received by the Office of Pensions or by the employee's agency/school district.

3.1.2 “The Plan” means the State Police Service, Disability and Survivors’ Pension Plan, as set forth in 11 Del.C. Ch. 83.

3.1.3 “The Plan Trust” means the Delaware Public Employees’ Pension System Trust, created pursuant to 29 Del.C. Ch. 83.

3.1.4 “Salary” as used in 11 Del.C. Ch. 83 means total salary prior to any payroll deductions, including but not limited to, deductions for contributions to the State’s Deferred Compensation Program pursuant to 29 Del.C. Ch. 60A. Salary shall not include payments in the nature of reimbursement, allowance for expenses, overtime payments, and special payments.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-4.0 Distribution of Benefits

4.1 Effective date of pensions.

4.1.1 Pension beneficiary: All pensions shall become effective on the first day of the month. Under 11 Del.C. §8376(a), a monthly benefit shall not be payable for any period earlier than the first day of the second month preceding the date on which Application for Benefit is filed.

4.1.2 Deceased pensioner monthly benefit and survivor's pension: The full pension benefit shall be payable for the month in which a pensioner's death occurs and shall be payable to the pensioner or his or her estate. Survivor's monthly pension benefit, if any, shall become effective the first day of the next month following the month in which a pensioner's death occurs.

4.3 Withdrawal benefits. Employees terminating employment who are not eligible for a service or disability pension shall be paid their accumulated contributions with interest pursuant to 11 Del.C. §8374. Such payments shall not be made until the Office of Pensions has verified the employee's total pension contributions. The interest rate to be paid on such payments shall be adopted by Resolution of the Board.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-5.0 Distribution Requirements to Comply with IRS Code §401(a)(9) [Compliance with Code §401(a)(9)(RMDs); IRS-approved Language]

5.1 Distributions from the Pension Trust may be made only upon the death of a Plan participant, termination of service by voluntary resignation, attainment of normal retirement age under the terms of the Plan, qualification for a disability pension under the terms of the Plan, or attainment of the age of 701/2 (if the Plan participant was born before July 1, 1949) or after age 72 (if the Plan participant was born after June 30, 1949) except for an employee in active status.

5.3 Notwithstanding any other provision of these rules and regulations, the Pension Fund is subject to the following provisions:

5.3.1 Benefits must begin by the required beginning date, which is the later of April 1 of the calendar year following the calendar year in which the Plan participant reaches 701/2 years of age (if the Plan participant was born before July 1, 1949) or after 72 years of age (if the Plan participant was born after June 30, 1949) or April 1 of the calendar year following the calendar year in which the Plan participant terminates employment. If a Plan participant fails to apply for retirement benefits by April 1 of the calendar year following the calendar year in which he or she reaches 701/2 years of age (if the Plan participant was born before July 1, 1949) or after 72 years of age (if the Plan participant was born after June 30, 1949) or April 1 of the calendar year following the calendar year in which he or she terminates employment, whichever is later, the Board will begin distributing the benefit as required by Section 5.0.

5.3.5 If a Plan participant dies before required distribution of the Plan participant's benefits has begun, the Plan participant's entire interest be distributed as follows:

5.3.5.1 If the participant's surviving spouse is the sole designated beneficiary, the participant's remaining interest in the Plan is distributed or begins to be distributed by December 31 of the calendar year immediately following the calendar year in which the member died or by December 31 of the calendar year in which the member would have attained age 70½ (if the deceased member was born before July 1, 1949) or after age 72 (if the deceased member was born after June 30, 1949) if later, and if the surviving spouse dies before the distribution to the surviving spouse begins, subsection 10.3.5.1 of this regulation shall be applied as if the surviving spouse were the Plan participant; or

5.3.5.3 Distributed by December 31 of the calendar year containing the fifth anniversary of the Plan participant's death.

5.3.7 The death and disability benefits provided by Pension Fund are limited by the incidental benefit rule set forth in Treasury Regulation §1.401-1(b)(1)(ii) or any successor regulation thereto.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-6.0 Disability

6.1 Documentation of disability. An application for disability shall be on the form prescribed by the Pension Office and shall include an evaluation from a qualified physician.

6.1.1 Post-Traumatic Stress Syndrome (“PTSD”) claims: The Board applies the standard of proof required under the Diagnostic and Statistical Manual of Mental Disorder. Applicants for a disability pension should submit a certification from a qualified psychiatrist, psychologist or physician with demonstrated experience in treating PTSD claims and establishing the following criteria:

6.1.1.1 Exposure to trauma or in response to duties;

6.1.1.2 Persistent experience such as flashbacks, trauma related thoughts or reminders, negative thoughts such as feelings of isolation or blame, trauma related reactivity such as hypervigilance or blame;

6.1.1.3 Symptoms last more than one month;

6.1.1.4 Symptoms cause functional impairment; or

6.1.1.5 Symptoms not due to medication or substance abuse.

6.2 Disability review.

6.2.1 The determination of disability and its cause shall be made by the Pension Administrator after receiving the recommendation of a qualified and independent third-party medical expert approved by the Board, and who shall provide a report to the Pension Administrator. Based upon the recommendation, the Pension Administrator shall make the following determinations:

6.2.1.1 The date of the onset of disability.

6.2.1.2 The cause of such disability and whether such cause is duty or non-duty related.

6.2.1.3 The extent of such disability, and whether it is Partial Disability or Total Disability.

6.2.1.3.1 Partial Disability means a medically determined physical or mental impairment which renders the member unable to function as a State Police Officer and which is reasonably expected to last at least 12 months. See 11 Del.C. §8351(12).

6.2.1.3.2 Total Disability shall mean a medically determined physical or mental impairment which renders the member totally unable to work in any occupation for which the member is reasonably suited by training or experience, which is reasonably expected to last at least 12 months. See 11 Del.C. §8351(15).

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-7.0 Return to Work Post-Retirement

7.1 Gubernatorial appointment. The phrase "An official appointed by the Governor" as used in 11 Del.C. §8352(a)(2) means an official appointed directly by the Governor and confirmed by the Senate.

7.2 Repayment of withdrawal benefits.

7.2.1 If a former employee, who withdrew his or her accumulated contributions upon termination of service again becomes an employee, his or her service credits to the date of termination shall be restored in accordance with the provisions of 11 Del.C. §8364(b)(3), if he or she repays the total amount withdrawn, plus an interest rate charge as adopted by the Board, compounded annually, within ninety 90 days after notification from the Office of Pensions.

7.2.2 If the repayment occurs after the ninety (90) days following written notification of such repayment option from the Office of Pensions, the repayment shall be equal to the amount in subsection 7.2.1 plus, for each full month or fraction thereof following the last day of the ninety (90) day period, interest rate charge as adopted by the Board.

7.2.3 Any interest rate charges collected under subsections 7.2.1 and 7.2.2 of this regulation shall not be considered part of accumulated contributions and shall not be refunded if the former employee takes a refund of accumulated contributions subsequent to a repayment.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-8.0 Maximum Income Limits [Compliance with IRS Code §401(a)(17); IRS-approved Language]

8.1 Effective with respect to plan years beginning on and after January 1, 1996, and before January 1, 2002, the annual compensation of a Plan participant which exceeds $150,000 (as indexed under §401(a)(17)(B) of the Internal Revenue Code of 1986) shall be disregarded for purposes of determining benefits or employee contributions. Effective only for the 1996 plan year, in determining the compensation of an employee eligible for consideration, §414(g)(6) of the Internal Revenue Code of 1986 shall apply, except that in applying such rules, the term "family" shall include only the spouse of the member and any lineal descendants of the employee who have not attained age nineteen (19) before the close of the year.

8.2 Effective with respect to plan years beginning on and after January 1, 2002, the annual compensation of a Plan participant which exceeds $200,000, as adjusted for cost-of-living increases in accordance with §401(a)(17)(B) of the Internal Revenue Code of 1986, may not be taken into account in determining benefits or employee contributions for any plan year. Annual compensation means compensation during the Plan year or such other consecutive twelve (12) month period over which compensation is otherwise determined under the Plan (the determination period). The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that begins with or within such calendar year. If the determination period consists of fewer than twelve (12) months, the annual compensation limit is an amount equal to the otherwise applicable annual compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period, and the denominator of which is twelve (12). If the compensation for any prior determination period is taken into account in determining a Plan participant's contributions or benefits for the current plan year, the compensation for such prior determination period is subject to the applicable annual compensation limit in effect for that prior period.

8.3 The limits referenced in subsections 8.1 and 8.2 above apply only to years beginning after December 31, 1995, and only to individuals who first become Plan participants in plan years beginning on and after January 1, 1996. Individuals who become Plan participants of before plan years beginning on and after January 1, 1996, are not subject to the limits of §401(a)(17) of the Internal Revenue Code of 1986. Instead, pursuant to section 13212(d)(3)(A) of the Omnibus Budget Reconciliation Act of 1993 (OBRA), and the regulations issued under that section, the annual compensation in effect under §401(a)(17) of the Internal Revenue Code of 1986 does not apply to any such Plan participant in any plan year.

History

12 DE Reg. 359 (09/01/08)
17 DE Reg. 91 (07/01/13)
25 DE Reg. 272 (09/01/21)

19 Del. Admin. Code § 2004-9.0 Direct Rollover and Trustee to Trustee Transfers [Compliance with IRS Code §401(a)(31); IRS-approved Language]