MARCH 1999, VOLUME 2, ISSUE 9 PAGES 1420-1681

DELAWARE REGISTER OF REGULATIONS


The Delaware Register of Regulations is an official State publication established by authority of 69 Del. Laws, c. 107 and is published on the first of each month throughout the year. The Delaware Register will publish any regulations that are proposed to be adopted, amended or repealed and any emergency regulations promulgated. The Register will also publish some or all of the following information:

Governor's Executive Orders

Governor's Appointments

Attorney General's Opinions in full text

Agency Hearing and Meeting Notices

Other documents considered to be in the public interest.

CITATION TO THE DELAWARE REGISTER

The Delaware Register of Regulations is cited by volume, issue, page number and date. An example would be:

l 1:1 Del. R. 35 - 37 (July 1, 1997) refers to Volume 1, Issue 1, pages 35 - 37 of the Delaware

Register issued on July 1, 1997.


SUBSCRIPTION INFORMATION

A yearly subscription to the Delaware Register of Regulations costs $80.00 per year for 12 issues. Single copies are available at a cost of $7.00 per issues, including postage. For more information contact the Division of Research at 302-739-4114 or 1-800-282-8545 in Delaware.


CITIZEN PARTICIPATION IN THE REGULATORY PROCESS

Delaware citizens and other interested parties may participarte in the process by which administrative regulations are adopted, amended or repealed, and may initiate the process by which the validity and applicability of regulations is determined. Under 29 Del.C. 10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file notice and full text of such proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication in the Register of Regulations. The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference to the legal authority of the agency to act, and reference to any other regulations that may be impacted or affected by the proposal, and shall state the manner in which persons may present their views; if in writing, of the place to which and the final date by which such views may be submitted; or if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such public hearing shall not be scheduled less than 20 days following publication of notice of the proposal in the Register of Regulations. If a public hearing will be held on the proposal, notice of the time, date, place and a summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general circulation.

The opportunity for public comment is held open for a minimum of 30 days after the proposal is published in the Register of Regulations. At the conclusion of all hearings and after receipt of all written materials, testimony and evidence, the agency shall determine whether a regulation should be adopted, amended or repealed and shall issue itsconclusion in an order which shall include: (1) A brief summary of the evidence and information submitted; (2) A brief summary of its findings of fact with respect to the evidence and information, except where a rule of procedure is being adopted or amended; (3) A decision to adopt, amend or repeal a regulation or to take no action and the decision shall be supported by its findings on the evidence and information received; (4) The exact text and citation of such regulation adopted, amended or repealed; (5) The effective date of the order; (6) Any other findings or conclusions required by the law under which the agency has authority to act; and (7) The signature of at least a quorum of the agency members.

The effective date of the order which adopts, amends or repeals a regulation shall be not less than 10 days from the date the order has been published in its final form in the Register of Regulations, unless such adoption, amendment or repeal qualifies as an emergency. Any person that is aggrieved by or claiming the unlawfulness of any regulation may bring an action in the Court for declaratory relief.

No action of an agency with respect to the making or consideration of a proposed adoption, amendment or repeal of a regulation shall be subject to review until final agency action on the proposal has been taken.

When any regulation is the subject of an enforcement action in the Court, the lawfulness of such regulation may be reviewed by the Court as a defense in the action. Except as provided in the preceding section, no judicial review of a regulation is available unless a complaint therefor is filed in the Court within 30 days of the day the agency order with respect to the regulation was published in the Register of Regulations.


CLOSING DATES AND ISSUE DATES FOR THE DELAWARE REGISTER OF REGULATIONS

ISSUE DATE        CLOSING DATE    CLOSING TIME
APRIL 1 MARCH 15 4:30 P.M
MAY 1 APRIL 15 4:30 P.M
JUNE 1 MAY 15 4:30 P.M
JULY 1 JUNE 15 4:30 P.M



DIVISION OF RESEARCH STAFF:

William S. Montgomery, Director, Division of Research; Walter G. Feindt, Deputy Director; Kathleen K. Amalfitano, Secretary; Jeffrey W. Hague, Registrar of Regulations; Maryanne McGonegal, Research Analyst; Ruth Ann Melson, Legislative Librarian; Deborah J. Messina, Print Room Supervisor; Alex Mull, Assistant Registrar of Regulations; Deborah A. Porter, Administrative Secretary; Virginia L. Potts, Administrative Assistant; Barbara A. Ryan, Public Information Clerk; Thom Shiels, Legislative Attorney; Marguerite P. Smith, Public Information Clerk; Ali Stark, Legislative Attorney; Mary Jane Starkey, Senior Secretary; Marvin L. Stayton, Printer; Rochelle Yerkes, Senior Secretary.


CUMULATIVE TABLES





The table printed below lists the regulations that have been proposed, adopted, amended or repealed

in the preceding issues of the current volume of the Delaware Register of Regulations.



The regulations are listed alphabetically by the promulgating agency, followed by a citation to that issue of the Register in which the regulation was published. Proposed regulations are designated with (Prop.); Final regulations are designated with (Final); Emergency regulations are designated with (Emer.); and regulations that have been repealed are designated with (Rep.).





Attorney General

Opinion No. 98-IB03, Authority to Delegate Approval of Certain Personnel Transactions 2:2 Del.R. 324

Opinion No. 98-IB04, FOIA Complaint Against Appoquinimink School District 2:2 Del.R. 325

Opinion No. 98-IB05, FOIA Complaint Against Appoquinimink School District 2:4 Del.R. 699

Opinion No. 98-IB06, Candidacy of Richard L. Abbott 2:4 Del.R. 700

Opinion No. 98-IB07, Sworn Payroll Information, 29 Del.C. 10002 2:4 Del.R. 703

Opinion No. 98-IB08, Complaint Against the Town of Townsend 2:4 Del.R. 705

Opinion No. 98-IB09, FOIA Complaint Against Woodbridge School District 2:8 Del.R. 1396

Opinion No. 98-IB10, Candidacy of Douglas Salter 2:8 Del.R. 1397

Opinion No. 98-IB11, Opinion of the Attorney General Concerning the Licensing of Oral

Maxillofacial Surgeons 2:8 Del.R. 1398

Opinion No. 98-IB12, FOIA Complaint Against Woodbridge School District 2:8 Del.R. 1399

Opinion No. 98-IB13, FOIA Complaint Against Town of Laurel 2:8 Del.R. 1401

Opinion No. 98-IB14, FOIA Complaint Against City of Newark 2:8 Del.R. 1402



Delaware Solid Waste Authority

DSWA, Rules and Regulations 2:8 Del.R. 1316 (Prop.)

Differential Disposal Fee Program 2:8 Del.R. 1328 (Prop.)

Proposed Amendment to the Statewide Solid Waste Management Plan 2:8 Del.R. 1329 (Prop.)



Delaware State Fire Prevention Commission

Part V, Chapter 5, Standard for the Marking, Identification, and Accessibility of Fire Lanes,

Exits, Fire Hydrants, Sprinkler and Standpipe Connections 2:5 Del.R. 765 (Prop.)

2:8 Del.R. 1331 (Prop.)



Department of Administrative Services

Division of Professional Regulation

Board of Clinical Social Work Examiners 2:2 Del.R. 164 (Prop.)

2:5 Del.R. 775 (Final)

Board of Cosmetology and Barbering 2:4 Del.R. 440 (Prop.)

2:8 Del.R. 1378 (Final)

Board of Funeral Services 2:2 Del.R. 207 (Final)

Board of Examiners in Optometry 2:1 Del.R. 95 (Final)

Board of Examiners of Psychologists 2:1 Del.R. 103 (Final)

2:3 Del.R. 341 (Prop.)

2:5 Del.R. 776 (Final)

Board of Examiners of Speech/Language Pathologists, Audiologists & Hearing Aid

Dispensers 2:3 Del.R. 370 (Final)

Board of Funeral Services 2:7 Del.R. 1061 (Prop.)

Board of Nursing 2:4 Del.R. 682 (Final)

Board of Pharmacy 2:1 Del.R. 6 (Prop.)

2:4 Del.R. 683 (Final)

Board of Plumbing Examiners 2:7 Del.R. 1065 (Prop.)

Board of Professional Counselors of Mental Health 2:1 Del.R. 12 (Prop.)

2:3 Del.R. 371 (Final)

Delaware Board of Occupational Therapy 2:8 Del.R. 1340 (Prop.)

Delaware Council on Real Estate Appraisers 2:3 Del.R. 372 (Final)

Delaware Gaming Board

Bingo, Charitable Gambling & Raffles 2:4 Del.R. 444 (Prop.)

2:7 Del.R. 1224 (Final)

Regulations Governing Bingo 2:8 Del.R. 1349 (Prop.)

Regulations Governing Charitable Gambling other than Raffles 2:8 Del.R. 1349 (Prop.)

Delaware Real Estate Commission 2:8 Del.R. 1343 (Prop.)



Department of Agriculture

Forest Service Regulations for State Forests 2:3 Del.R. 348 (Prop.)

Harness Racing Commission

Administrator of Racing, Definition 2:4 Del.R. 457 (Prop.)

2:7 Del.R. 1239 (Final)

Inclusion in List of Commission Officials 2:4 Del.R. 457 (Prop.)

2:7 Del.R. 1240 (Final)

Calculation of Time Allowance Based on Weather Conditions 2:4 Del.R. 462 (Prop.)

2:7 Del.R. 1244 (Final)

Calculation of Time Allowance Based on Weather Conditions 2:7 Del.R. 1068 (Prop.)

Commission's Powers to Appoint Officials 2:4 Del.R. 456 (Prop.)

2:7 Del.R. 1238 (Final)

Commission's Powers to Appoint Officials 2:7 Del.R. 1068 (Prop.)

Commission's Powers to Regulate Drug Testing 2:4 Del.R. 457 (Prop.)

2:7 Del.R. 1240 (Final)

Conditions for Non-Winners and Winners of Over $100.00 2:4 Del.R. 461 (Prop.)

2:7 Del.R. 1243 (Final)

Conditions for Number of Horses in Field 2:4 Del.R. 461 (Prop.)

2:7 Del.R. 1244 (Final)

Creation of Racing Official Positions 2:4 Del.R. 457 (Prop.)

Definition of Investigator 2:4 Del.R. 456 (Prop.)

2:7 Del.R. 1239 (Final)

Delaware Owned or Bred Races, Addition of 2:4 Del.R. 458 (Prop.)

2:7 Del.R. 1240 (Final)

Conditions for 2:4 Del.R. 458 (Prop.)

2:7 Del.R. 1240 (Final)

Definitions of 2:4 Del.R. 458 (Prop.)

2:7 Del.R. 1240 (Final)

Filing of Claiming Authorization at Time of Declaration, Requirement of 2:4 Del.R. 460 (Prop.)

2:7 Del.R. 1242 (Final)

Overnight Events 2:7 Del.R. 1068 (Prop.)

Payment of Court Reporter Costs by Licensees Filing Appeals 2:4 Del.R. 461 (Prop.)

2:7 Del.R. 1243 (Final)

Procedure for Determination of Preference Dates 2:4 Del.R. 461 (Prop.)

2:7 Del.R. 1244 (Final)

Procedure for Determination of Preference Dates 2:7 Del.R. 1068 (Prop.)

Procedure for Horses Placed on Steward's List 2:4 Del.R. 461 (Prop.)

2:7 Del.R. 1243 (Final)

Prohibition on Racing Claimed Horses 2:7 Del.R. 1068 (Prop.)

Prohibition of Racing Horses 15 Years or Older 2:4 Del.R. 460 (Prop.)

2:7 Del.R. 1243 (Final)



Revision of Procedures for Claiming Horse that Tests Positive for Illegal Substance 2:4 Del.R. 460 (Prop.)

2:7 Del.R. 1242 (Final)

Selection of Races in Division, Procedure for 2:4 Del.R. 460 (Prop.)

2:7 Del.R. 1243 (Final)

Whipping 2:4 Del.R. 684 (Final)

Pesticide Rules & Regulations 2:5 Del.R. 724 (Prop.)

2:8 Del.R. 1380 (Final)

Thoroughbred Racing Commission

Administrator of Racing, Rule 4.10 2:7 Del.R. 1070 (Prop.)

Appointment of Racing Officials, Rule 4.01 2:7 Del.R. 1069 (Prop.)

Investigator, Rule 4.09 2:7 Del.R. 1070 (Prop.)

Limits on Claims, Rule 13.04 2:7 Del.R. 1071 (Prop.)

Prohibition on Racing Claimed Horses, Rule 13.18 2:1 Del.R. 93 (Final)

Qualification for Stewards, Rule 3.01 2:7 Del.R. 1069 (Prop.)

Racing Claimed Horses, Rule 13.19 2:1 Del.R. 6 (Prop.)

2:3 Del.R. 373 (Final)

Statement of Purpose 2:7 Del.R. 1070 (Prop.)



Department of Education

Career Guidance & Placement Counselors 2:5 Del.R. 740 (Prop.)

Comprehensive School Discipline Program 2:3 Del.R. 374 (Final)

Constitution & Bylaws of DSSAA 2:1 Del.R. 113 (Final)

Cooperative Education Program 2:1 Del.R. 110 (Final)

Delaware Testing Requirements for Initial Licensure 2:1 Del.R. 32 (Prop.)

Diversified Occupations Programs 2:1 Del.R. 111 (Final)

Establishing a School District Planning Process, Repeal of Policy 2:2 Del.R. 166 (Prop.)

General Education Development (GED) 2:1 Del.R. 16 (Prop.)

2:3 Del.R. 376 (Final)

James H. Groves High School 2:1 Del.R. 17 (Prop.)

2:3 Del.R. 378 (Final)

K - 12 Guidance Programs 2:5 Del.R. 741 (Prop.)

Middle Level Education Regulation 2:2 Del.R. 167 (Prop.)

Middle Level Education Section of Handbook for K-12 Education, Repeal of 2:1 Del.R. 23 (Prop.)

Middle Level Mathematics & Science Certification 2:1 Del.R. 21 (Prop.)

2:3 Del.R. 377 (Final)

Multicultural Education Regulations 2:4 Del.R. 462 (Prop.)

2:7 Del.R. 1244 (Final)

Options for Awarding Credit Toward High School Graduation 2:7 Del.R. 1071 (Prop.)

Policy for Establishing a School District Planning Process 2:4 Del.R. 464 (Prop.)

2:6 Del.R. 960 (Final)

Policy for School Districts on the Possession, Use & Distribution of Drugs & Alcohol 2:2 Del.R. 213 (Final)

Prohibition of Discrimination 2:4 Del.R. 465 (Prop.)

2:7 Del.R. 1276 (Final)

Promotion Policy 2:2 Del.R. 171 (Prop.)

Promotion Regulation 2:5 Del.R. 742 (Prop.)

2:7 Del.R. 1247 (Final)

Releasing Students to Persons other than their Parents or Legal Guardians 2:3 Del.R. 357 (Prop.)

2:5 Del.R. 778 (Final)

Safety 2:2 Del.R. 215 (Final)

School Attendance 2:2 Del.R. 172 (Prop.)

2:4 Del.R. 685 (Final)

School Calendar and Required Days and Hours of Instruction 2:8 Del.R. 1350 (Prop.)

School Construction 2:6 Del.R. 807 (Prop.)

2:8 Del.R. 1380 (Final)

School Custodians 2:3 Del.R. 353 (Prop.)

2:5 Del.R. 778 (Final)

Student Progress, Grading & Reporting, Repeal of 2:2 Del.R. 171 (Prop.)

2:4 Del.R. 686 (Final)

Student Rights & Responsibilities 2:1 Del.R. 112 (Final)

Summer School Programs, Repeal of 2:2 Del.R. 172 (Prop.)

2:4 Del.R. 687 (Final)

Technology 2:8 Del.R. 1350 (Prop.)

Title I Complaint Process 2:2 Del.R. 217 (Final)

Unit Count 2:1 Del.R. 25 (Prop.)

2:3 Del.R. 382 (Final)

Department of Finance

Division of Revenue

Proposed Tax Ruling 98- , Contractors License Tax 2:1 Del.R. 40 (Prop.)

Proposed Technical Information Memorandum 98-2, Effect of Federal

Small Business Job Protection Act 2:1 Del.R. 41 (Prop.)

2:3 Del.R. 384 (Final)

Office of the State Lottery

Video Lottery Regulations, Operations Employees, License Renewal, etc. 2:1 Del.R. 115 (Final)

Video Lottery Regulations, 5.2(2) Maximum Bet Limit & 7.9 Redemption Period 2:3 Del.R. 358 (Prop.)

2:5 Del.R. 779 (Final)



Department of Health & Social Services

Division of Mental Retardation

DMR Eligibility Criteria 2:8 Del.R. 1358 (Prop.)

Division of Public Health

Office of Drinking Water 2:7 Del.R. 1094 (Prop.)

Office of Health Facilities Licensing & Certification

Managed Care Organizations 2:1 Del.R. 42 (Prop.)

2:6 Del.R. 962 (Final)

Office of Vital Statistics

Vital Statistics Code, Regulations for 2:8 Del.R. 1351 (Prop.)

Regulations Governing Lead-Based Paint Hazards 2:2 Del.R. 234 (Final)

Division of Social Services

A Better Chance/Food Stamp Program 2:1 Del.R. 118 (Final)

Community Support Services/Alcohol-Drug Abuse Provider Manual 2:6 Del.R. 811 (Prop.)

Community Support Services/Mental Health Provider Manual 2:6 Del.R. 823 (Prop.)

DMAP, 270.10, DMAP 301.25 & DMAP 307.60 2:3 Del.R. 385 (Final)

DMAP, 301.25 Composition of Budget Unit 2:2 Del.R. 219 (Final)

DMAP, 301.25C, Adult Expansion Population 2:3 Del.R. 387 (Final)

DMAP, Ambulatory Surgical Center Manual 2:4 Del.R. 495 (Prop.)

2:6 Del.R. 985 (Final)

DMAP Durable Medical Equipment, EPSDT & Practitioner Provider Manuals 2:2 Del.R. 221 (Final)

DMAP, General Policy Manual 2:4 Del.R. 497 (Prop.)

2:6 Del.R. 986 (Final)

DMAP, General Policy Manual 2:6 Del.R. 837 (Prop.)

DMAP, General Policy Manual, Aliens 2:1 Del.R. 67 (Prop.)

2:3 Del.R. 389 (Final)

DMAP, General Policy Manual, Medicaid Credit Balance Report (MCBR) 2:7 Del.R. 1076 (Prop.)

DMAP, Inpatient Hospital Manual 2:4 Del.R. 496 (Prop.)

2:6 Del.R. 986 (Final)

DMAP, Outpatient Hospital Manual 2:4 Del.R. 497 (Prop.)

2:6 Del.R. 986 (Final)



DMAP, Practitioner Manual 2:4 Del.R. 496 (Prop.)

2:6 Del.R. 985 (Final)

DMAP, Provider Manual, Reimbursement for Services 2:1 Del.R. 66 (Prop.)

2:3 Del.R. 389 (Final)

DSSM Section 3005, TANF Program 2:4 Del.R. 494 (Prop.)

2:7 DEl.R. 1249 (Final)

DSSM Section 3008, Children Born to Teenage Parent 2:1 Del.R. 65 (Prop.)

2:6 Del.R. 981 (Final)

DSSM Section 3024, Citizens and Aliens Eligibility for TANF 2:5 Del.R. 744 (Prop.)

2:8 Del.R. 1384 (Final)

DSSM Section 3031, Work for your Welfare (Workfare) Program 2:5 Del.R. 745 (Prop.)

2:8 Del.R. 1386 (Final)

DSSM Section 9007.1, Citizenship & Alien Status 2:3 Del.R. 359 (Prop.)

2:6 Del.R. 982 (Final)

DSSM Section 9068, Food Stamp Program 2:2 Del.R. 174 (Prop.)

2:7 Del.R. 1251 (Final)

DSSM Section 9085, Reporting Changes 2:7 Del.R. 1054 (Emer.)

2:7 Del.R. 1074 (Prop.)

DSSM Section 9092, Simplified Food Stamp Program 2:2 Del.R. 174 (Prop.)

2:7 Del.R. 1251 (Final)

DSSM Section 11000 & 12000, Child Care & First Step Program 2:4 Del.R. 466 (Prop.)

2:7 Del.R. 1249 (Final)

DSSM Section 14900, Eligibility Manual 2:4 Del.R. 493 (Prop.)

2:6 Del.R. 984 (Final)

DSSM Section 16000, Eligibility Manual 2:4 Del.R. 492 (Prop.)

2:6 Del.R. 984 (Final)

DSSM Section 18200, Uninsured Requirement 2:7 Del.R. 1075 (Prop.)

DSSM, Title XXI, Delaware Healthy Children Program, General Policy Manual and

Eligibility Manual 2:4 Del.R. 485 (Prop.)

Long Term Care, Home Health, Ground Ambulance & Hospice Provider Manuals 2:3 Del.R. 389 (Final)

Long Term Care Provider Manual, Durable Medical Equipment 2:1 Del.R. 68 (Prop.)

2:3 Del.R. 389 (Final)

Medicaid Eligibility Manual, Renumbering of 2:3 Del.R. 359 (Prop.)

2:5 Del.R. 780 (Final)

Medical Necessity, Definition of 2:5 Del.R. 748 (Prop.)

2:7 Del.R. 1249 (Final)

Non-Emergency Transportation Provider Manual 2:6 Del.R. 837 (Prop.)

2:8 Del.R. 1384 (Final)

Non-Emergency Transportation Provider Manual, Unloaded Mileage 2:3 Del.R. 389 (Final)

Outpatient Hospital Provider Manual 2:6 Del.R. 836 (Prop.)

2:8 Del.R. 1384 (Final)

Pharmacy Provider Manual, Reimbursement for Services 2:1 Del.R. 67 (Prop.)

2:3 Del.R. 389 (Final)

Practitioner Provider Manual 2:6 Del.R. 836 (Prop.)

2:8 Del.R. 1384 (Final)

Private Duty Nursing Manual 2:6 Del.R. 838 (Prop.)

2:8 Del.R. 1384 (Final)

Simplified Food Stamp Program, ABC Benefits 2:1 Del.R. 120 (Final)

Temporary Assistance for Needy Families (TANF) 2:1 Del.R. 60 (Prop.)

2:4 Del.R. 688 (Final)

Department of Insurance

Regulation No. 37, Defensive Driving Course Discount (Automobiles & Motorcycles) 2:1 Del.R. 68 (Prop.)

2:6 Del.R. 989 (Final)

Regulation No. 47, Education for Insurance Adjusters, Agents, Brokers, Surplus

Lines Brokers & Consultants 2:1 Del.R. 122 (Final)

Regulation No. 63, Long-Term Care Insurance 2:2 Del.R. 187 (Prop.)

Regulation No. 65, Workplace Safety 2:1 Del.R. 71 (Prop.)

2:4 Del.R. 688 (Final)

Regulation No. 80, Standards for Prompt, Fair and Equitable Settlements of Claims for

Health Care Services 2:2 Del.R. 277 (Final)



Department of Natural Resources & Environmental Control

Delaware Coastal Management Program, Federal Consistency Policies 2:4 Del.R. 500 (Prop.)

Delaware Coastal Zone Regulations 2:5 Del.R. 749 (Prop.)

Division of Air & Waste Management

Air Quality Management Section

1999 Rate-of-Progress Plan for Kent & New Castle Counties 2:8 Del.r. 1359 (Prop.)

Accidental Release Prevention Regulation 2:4 Del.R. 629 (Prop.)

2:7 Del.R. 1252 (Final)

Delaware Low Enhanced Inspection & Maintenance (LEIM) Program 2:2 Del.R. 234 (Final)

Regulation 20, New Source Performance Standards for Hospital/Medical/Infectious

Waste Incinerators 2:1 Del.R. 75 (Prop.)

2:3 Del.R. 390 (Final)

Regulation 1 & 24, Definition of Volatile Organic Compounds (VOC) 2:1 Del.R. 74 (Prop.)

2:4 Del.R. 690 (Final)

Regulation 1 & 3, Governing the Control of Air Pollution 2:7 Del.R. 1195 (Prop.)

Regulation 24, Control of Volatile Organic Compound Emissions 2:5 Del.R. 761 (Prop.)

2:8 Del.R. 1387 (Final)

Regulation 37, NOx Budget Program 2:7 Del.R. 1170 (Prop.)

Regulation 38, Emission Standards for Hazardous Air Pollutants for

Source Categories 2:5 Del.R. 759 (Prop.)

2:8 Del.R. 1390 (Final)

Waste Management Section

Regulations Governing Hazardous Waste 2:6 Del.R. 994 (Final)

Regulations Governing Solid Waste 2:4 Del.R. 545 (Prop.)

2:6 Del.R. 838 (Prop.)

Division of Fish & Wildlife

Boating Regulations 2:6 Del.R. 930 (Prop.)

Reproposal 2:7 Del.R. 1197 (Prop.)

Shellfish Reg. No. S-23, Lobster-Pot Design 2:8 Del.R. 1373 (Prop.)

Shellfish Reg. No. S-25, Lobster-Pot Season & Limits for Commercial

Lobster Pot License 2:8 Del.R. 1374 (Prop.)

Shellfish Reg. No. S-26, Possession of V-Notched Lobsters Prohibited 2:8 Del.R. 1375 (Prop.)

Shellfish Reg. No. S-55-A, Public Lottery for Horseshoe Crab Dredge Permits 2:7 Del.R. 1055 (Emer.)

Tidal Finfish Reg. No. 4, Summer Flounder Size Limits; Possession Limits; Season 2:8 Del.R. 1375 (Prop.)

Tidal Finfish Reg. No. 10, Weakfish Size Limits, Possession Limits, Seasons 2:7 Del.R. 1213 (Prop.)

Tidal Finfish Reg. No. 23, Black Sea Bass Size Limit; Trip Limits; Seasons; Quotas 2:8 Del.R. 1376 (Prop.)

Tidal Finfish Reg. No. 24, Fish Pot Requirements 2:7 Del.R. 1215 (Prop.)

Tidal Finfish Reg. No. 26, American Shad & Hickory Shad Creel Limits 2:7 Del.R. 1216 (Prop.)

Wildlife & Fresh Water Fish Regulations 2:6 Del.R. 916 (Prop.)

Division of Water Resources

NPDES General Permit Program Regulations Governing Storm Water Discharges

Associated with Industrial Activity 2:3 Del.R. 393 (Final)

Water Supply Section

Regulations for Licensing Water Well Contractors, Pump Installer Contractors, Well

Drillers, Well Drivers & Pump Installers 2:2 Del.R. 176 (Prop.)

2:6 Del.R. 997 (Final)

Watershed Assessment Section

Total Maximum Daily Loads (TMDLs) for Indian River, Indian River Bay, and

Rehoboth Bay, Delaware 2:2 Del.R. 183 (Prop.)

2:6 Del.R. 1004 (Final)

Total Maximum Daily Loads (TMDLs) for Nanticoke River & Broad Creek, 2:2 Del.R. 185 (Prop.)

2:6 Del.R. 1006 (Final)



Department of Pubic Safety

Rules of the Delaware Alcoholic Beverage Control Commission, Rule 29 2:7 Del.R. 1216 (Prop.)

Department of Services for Children, Youth & Their Families

Office of Child Care Licensing

Child Abuse Registry 2:1 Del.R. 129 (Final)



Department of State

Office of the State Banking Commissioner

Regulation No. 5.121.0002, Procedures Governing the Creation & Existence

of an Interim Bank 2:4 Del.R. 669 (Prop.)

2:6 Del.R. 1021 (Final)

Regulation No. 5.1403.0001, Procedures Governing Filings and Determinations Respecting

Applications for a Foreign Bank Limited Purpose Branch or Foreign Bank Agency 2:2 Del.R. 299 (Final)

Regulation No. 5.1403.0002, Application by a Foreign Bank for a Certificate of Authority

to Establish a Foreign Bank Limited Purpose Branch or Foreign Bank Agency

Pursuant to 5 Delaware Code 1403 2:2 Del.R. 299 (Final)

Regulation No. 5.1403/1101.0003, Regulations Governing the Organization, Chartering

Supervision, Operation and Authority of a Delaware Foreign Bank Limited Purpose

Branch, a Delaware Foreign Bank Agency and a Delaware Foreign Bank

Representative Office 2:2 Del.R. 312 (Final)

Regulation No. 5.1422.0004, Application by a Foreign Bank for a License to Establish

a Foreign Bank Representative Office Pursuant to Subchapter II, Chapter 14,

Title 5, Delaware Code 2:2 Del.R. 315 (Final)

Regulation No. 5.2102(b)/2112.0001, Mortgage Loan Brokers Operating Regulations 2:3 Del.R. 361 (Prop.)

2:5 Del.R. 782 (Final)

Regulation No. 5.2210(d).0001, Licensed Lenders Operating Regulations 2:3 Del.R. 362 (Prop.)

2:5 Del.R. 782 (Final)

Regulation No. 5.2218/2231.0003, Licensed Lenders Regulations Itemized Schedule

of Changes 2:3 Del.R. 364 (Prop.)

2:5 Del.R. 784 (Final)

Regulation No. 5.2741.0001, Licensed Casher of Checks, Drafts or Money Orders

Operating Regulations 2:3 Del.R. 365 (Prop.)

2:5 Del.R. 786 (Final)

Regulation No. 5.2743.0002, Licensed Casher of Checks, Drafts or Money Orders

Posting of the Fee Schedule & Minimum Requirements for Content of Books

and Records 2:3 Del.R. 366 (Prop.)

2:5 Del.R. 786 (Final)

Regulation No. 5.2905(e)/122(b).0001, Motor Vehicle Sales Finance Companies Minimum

Requirements for Content of Books and Records 2:3 Del.R. 366 (Prop.)

2:5 Del.R. 787 (Final)

Regulation No. 5.2905(e).0002, Motor Vehicle Sales Finance Companies Operating

Regulations 2:3 Del.R. 367 (Prop.)

2:5 Del.R. 788 (Final)

Regulation No. 5.3404.0001, Preneed Funeral Contracts Regulations Governing

Irrevocable Trust Agreements 2:2 Del.R. 319 (Final)



Regulation No. 5.701/774.0001, Procedures for Applications to Form a Bank, Bank &

Trust Company or Limited Purpose Trust Company, Pursuant to Chapter 7 of

Title 5 of the Delaware Code 2:4 Del.R. 671 (Prop.)

2:6 Del.R. 1023 (Final)

Regulation No. 5.751.0013, Procedures Governing the Dissolution of a State Chartered

Bank or Trust Company 2:2 Del.R. 296 (Final)

Regulation No. 5.833.0004, Application by an Out-of-State Savings Institution,

Out-of-State Savings & Loan Holding Company or Out-of-State Bank Holding

Company to Acquire a Delaware Savings Bank or Delaware Savings and

Loan Holding Company 2:4 Del.R. 673 (Prop.)

2:6 Del.R. 1025 (Final)

Regulation No. 5.844.0009, Application by an Out-of-State Bank Holding Company to

Acquire a Delaware Bank or Bank Holding Company, 5 Del.C. 844 2:4 Del.R. 676 (Prop.)

2:6 Del.R. 1029 (Final)

Regulation No. 5.853.0001P, Procedures Governing the Registration of Delaware Bank

Holding Companies with the Bank Commissioner Pursuant to the Provision of

Section 853 of Title 5, Delaware Code, Repeal of 2:2 Del.R. 320 (Final)

Regulation No. 5.852.0002, Application to Become a Delaware Bank Holding Company 2:2 Del.R. 297 (Rep.)



Department of Transportation

Aeronautical Regulations 2:1 Del.R. 130 (Final)

Subdivision Plan Review Fee Procedures 2:4 Del.R. 693 (Final)



Governor's Office

Appointments & Nominations 2:1 Del.R. 145

2:2 Del.R. 322

2:3 Del.R. 425

2:4 Del.R. 696

2:5 Del.R. 790

2:6 Del.R. 1037

2:7 Del.R. 1295

2:8 Del.R. 1395

Executive Order No. 54 2:1 Del.R. 143

Executive Order No. 55 2:6 Del.R. 1033

Executive Order No. 56 2:7 Del.R. 1293

Executive Order No. 57 2:8 Del.R. 1394



Public Service Commission

PSC Regulation Docket No. 4, Minimum Filing Requirements for all Regulated

Companies Subject to the Jurisdiction of the Public Service Commission 2:1 Del.R. 81 (Prop.)

PSC Regulation Docket No. 10 2:6 Del.R. 946 (Prop.)

PSC Regulation Docket No. 12 (Track III), Rules to Govern Payphone Services 2:4 Del.R. 695 (Final)

PSC Regulation Docket No. 41, Implementation of the Telecommunications Technology

Investment Act 2:2 Del.R. 280 (Final)

PSC Regulation Docket No. 44, Information Required to be Filed by a Manufacturer to

Establish an Additional Dealer or to Relocate an Existing Dealership Pursuant to

6 Del.C. 4915(a) 2:4 Del.R. 679 (Prop.)

2:6 Del.R. 1009 (Final)

PSC Regulation Docket No. 45 2:6 Del.R. 954 (Prop.)

PSC Regulation Docket No. 47, Discounts for Intrastate Telecommunications and Information

Services Provided to Schools and Libraries 2:7 Del.R. 1057 (Emer.)

2:7 Del.R. 1220 (Prop.)

Violent Crimes Compensation Board

Rules XXVI, XXVIII, XXIX, XXX 2:5 Del.R. 773 (Prop.)






ERRATA

DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Air & Waste Management

Air Quality Management Section

Statutory Authority: 7 Delaware Code,

Chapter 60 (7 Del.C. Ch. 60)

 

The final regulations Governing the Control of Air Pollution, Numbers 24 and 38, relating to Dry Cleaning Facilities using Perchloroethylene were published in Volume 2, Issue 8 of the Register beginning at page 1387. Two corrections should be noted.

 

1. The effective date listed at the end of the table of contents should read 06/30/99. The corrected text, bolded and bracked, follows:

 

Table of Contents

 

Section 39 - [RESERVED] Page 132

Section 40 - Leaks from Synthetic Organic

Chemical, Polymer, and Resin Manufacturing

Equipment. Page 138

 

Section 41 - Manufacture of High-Density Polyethylene,

Polypropylene and Polystyrene Resins. Page 144

Section 42 - Air Oxidation Processes in the Synthetic

Organic Chemical Manufacturing Industry Page 152

Section 43 - Bulk Gasoline Marine Tank Vessel

Loading Facilities. Page 164

Section 44 - Batch Processing Operations. Page 174

Section 45 - Industrial Cleaning Solvents. Page 182

Section 46 - [RESERVED] Page 187

Section 47 - Offset Lithographic Printing. Page 187

Section 48 - Reactor Processes and Distillation Operations in

the Synthetic Organic Chemical

Manufacturing Industry. Page 195

 

Section 39 - Perchloroethylene Dry Cleaning [RESERVED].

1/11/93 2/11/99 [06/30/99]

 

2. On page 1393 section (q)(2) the sub-paragraph identifier (iii) should be added in front of the word "All". The corrected text, bold and bracked, follows:

 

(o q) The opening to p Paragraph 63.324(c) shall be replaced with the following language: "(c)(1) Each owner or operator of an area source dry cleaning facility that exceeds the solvent consumption amounts specified in paragraphs 63.320 (d), (e) or (g) shall notify the Department not later than 30 days after the exceedance occurred. The notification shall provide the following information and shall be signed by a responsible official who shall certify its accuracy:

(i) The name and address of the dry cleaning facility;

(ii) A copy of the yearly perchloroethylene consumption records that indicate that there was an exceedance of the applicable amount specified in paragraphs 63.320 (d), (e) or (g);

(iii) The circumstances that led to the exceedance; and

(iv) A statement that all information contained in the notification is true and accurate.

(2) Each owner or operator of an area source dry cleaning facility that becomes subject to additional requirements under Sec. 63.320 (f)(1) or (i)(1) shall submit to the Department on or before the dates specified in Sec. 63.320 (f)(2 1) or (i)( 2 1), a notification of compliance status providing the following information and signed by a responsible official who shall certify its accuracy:

(i) The new yearly perchloroethylene solvent consumption limit based upon the yearly solvent consumption calculated according to Sec. 63.323(d);

(ii) Whether or not they are in compliance with each applicable requirement of Sec. 63.322; and

[(iii)] All information contained in the statement is accurate and true."






PROPOSED REGULATIONS

Symbol Key

 

Roman type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text. Language which is stricken through indicates text being deleted.

 

 

Proposed Regulations

 

Under 29 Del.C. §10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file notice and full text of such proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this title. The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference to the legal authority of the agency to act, and reference to any other regulations that may be impacted or affected by the proposal, and shall state the manner in which persons may present their views; if in writing, of the place to which and the final date by which such views may be submitted; or if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such public hearing shall not be scheduled less than 20 days following publication of notice of the proposal in the Register of Regulations. If a public hearing will be held on the proposal, notice of the time, date, place and a summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general circulation; The notice shall also be mailed to all persons who have made timely written requests of the agency for advance notice of its regulation-making proceedings.

 

 

DELAWARE HEALTH CARE COMMISSION

Delaware Health Information Network

Statutory Authority: 16 Delaware Code,

Section 9921 ( 16 Del.C. 9921)

 

Delaware Health Care Commission

Delaware Health Information Network

 

Public Notice

 

Please Take Notice, pursuant to 29 Del.C. Chapter 101 and 16 Del.C. § 9925, that the Delaware Health Information Network has proposed regulations for the governance and administration of the Board of the Delaware Health Information Network. The regulations will describe the Board's organization and general rules of procedure. A public hearing will be held on the proposed regulations on Monday, March 22, at 3:00 p.m. in Downes Lecture Hall of the Delaware Technical and Community College, Terry Campus Conference Center, Dover, Delaware. The Delaware Health Care Commission will receive and consider input in writing from any person the proposed regulations. Written comments should be submitted in care of Judith Chaconas, Delaware Health Care Commission, Delaware Health Information Network, 150 William Penn Street, Ground Floor, Dover, DE 19901. Final date to submit written comments shall be March 31, 1999 by 4:30 p.m. Anyone wishing to obtain a copy of the proposed regulations or to make comments at the public hearing should contact Judith Chaconas at the above address or by calling (302) 739-6906. This notice will be published in two newspapers of general circulation not less than twenty (20) days prior to the date of the hearing.

 

DELAWARE HEALTH INFORMATION NETWORK

PROPOSED REGULATIONS

 

Chapter 1 - Board of Governance and Administration

 

§ 101. Appointment; Terms of Office

(a) Individuals appointed to the Board of the Delaware Health Information Network (hereafter "Board") shall be appointed in writing by the entity holding the power of appointment pursuant to 16 Del.C. § 9921. The appointing entity may remove any of its appointees by appointing another with at least thirty days notice to the Chairperson of the Board.

(b) Individuals shall be appointed to the Board for a term of three years, except as provided herein. The term for each Board position shall be staggered by thirds, more or less, so that the first term for a Board position may be one, two or three years and shall be determined by lot. The Secretary shall maintain a record of the terms for each Board position. Terms shall commence on January 1 and expire on December 31 of the appropriate year and upon appointment of their successors.

(c) A member of the Board may be removed for cause by the majority of the members appointed to the Board and confirmed by the Delaware Health Care Commission.

§ 102. Officers of the Board; Duties

(a) One member of the Board shall be elected to serve as Chairperson by a majority of the members appointed to the Board. The Chairperson shall:

(1) preside over meetings of the Board;

(2) maintain good order;

(3) determine the agenda for meetings

(4) appoint the membership of committees and work groups, except the Executive Committee;

(5) execute documents in the name of the Board; and

(6) perform such other matters as determined by the Board.

(b) One member of the Board shall be elected to serve as Vice-Chairperson by a majority of the members appointed to the Board. The Vice-Chairperson shall perform the duties of the Chairman when he or she is not able to do so.

(c) One member of the Board shall be elected to serve as Secretary by a majority of the members appointed to the Board. The Secretary shall maintain the records of the Board and its members, and attest to the official matters of the Board. Additionally, the Secretary shall perform the duties of the Chairman when the Chairperson and Vice-Chairperson are not able to do so.

 

§ 103. Committees, Work Groups

(a) The Board shall have an Executive Committee and such other committees or work groups as may be desirable from time to time. A member of the Board shall serve as the Chairperson of such committees. The Executive Committee shall be comprised of 7 members, to include the Chairperson, who shall preside, the Vice-Chairperson, the Secretary and 4 other members elected by a majority of the Board. The Executive Committee is authorized to act on behalf of the full Board where the full Board can not be reasonably convened to act in a timely manner on a matter, as assigned by the Board.

(b) No Committee, except the Executive Committee, or work group needs a quorum to conduct business. Nevertheless, such meetings shall be conducted publicly, unless the meeting is determined to be closed to the public.

(c) Meetings and activities of committees and work groups shall be determined by the committee and group leadership, and in accordance with the direction of the Board.

 

§ 104. Board Meetings; Notice

(a) The Chairperson, with the advice of the Board, shall determine the frequency and schedule of Board meetings and with the assistance of the staff provide the required notices pursuant to 29 Del.C. ch. 100.

(b) A majority of the members of the Board shall constitute a quorum and shall be sufficient for any action by the Board provided, however, that if the number afterwards should be reduced below a quorum, business is not interrupted unless a member calls attention to the fact.

(c) The Board may convene special meetings or reschedule meetings as provided by law.

(d) All meetings of the Board shall be conducted in public unless it is closed to the public in accordance with law.

 

§ 105. Public Access to Records

(a) The Board shall permit access to its public records in accordance with the law and as that term is defined in 29 Del.C. ch. 100. A Delaware citizen that wishes to inspect the Board's public records shall call or write to staff to determine a convenient time and place. The Board may impose a reasonable charge for requested copying of any public records. The Chairperson may request legal advice from the Attorney General and authorize access to public records.

(b) No access shall be provided to the health information network or data without an order of the Health Care Commission or otherwise in accordance with these rules.

 

§ 106. Conflict of Interest; Recusal

(a) The members shall conduct themselves in accordance with the Delaware Code of Ethics, 29 Del.C. ch. 58.

(b) If any member has a conflict of interest as defined in the Code of Ethics, they shall recuse themselves from voting in the matter. The conflicted members may participate in discussions on the conflicted matter as long as they have disclosed the nature of the conflict to the other members. If they choose not to disclose the nature of the conflict to the other members, such conflicted members must publicly state at the Board meeting or in writing to the Chairperson they will not be participating in the conflicted matter. The Secretary shall maintain a record of such recusals.

(c) Members may seek legal advice on purported conflicts from the Attorney General or a determination from Ethics Counsel.

 

§ 107. Statutory Authority

The Delaware Health Care Commission is authorized pursuant to 16 Del.C. § 9925 (a) to promulgate these rules in accordance with 29 Del.C. ch. 101.

DEPARTMENT OF EDUCATION

Statutory Authority: 14 Delaware Code,

Section 122(d) (14 Del.C. 122(d))

 

EDUCATIONAL IMPACT ANALYSIS PURSUANT

TO 14 DEL.C., SECTION 122(d)

 

STUDENTS - NECESSARY AND LEGAL ABSENCES

 

A. TYPE OF REGULATORY ACTION REQUESTED

 

Amendment to Existing Regulation

 

B. SYNOPSIS OF SUBJECT MATTER OF REGULATION

 

The Secretary seeks the consent of the State Board of Education to amend the regulation entitled Necessary and Legal Absences found in Appendix A of the Handbook for K-12 Education, page 2. The amendment is needed to focus the language of the regulation on the four main areas where absences are permitted by the Secretary and the State Board of Education and to eliminate from regulation those areas covered in the Del. C. Local boards of education have the responsibility under 14 Del. C. to enforce the laws concerning school attendance and District Superintendents as the chief school officers may excuse or cause to be excused any child for necessary and legal absences. This regulation along with the Del. C. provides school districts with the parameters they need to establish there local attendance policies.

 

C. IMPACT CRITERIA

 

1. Will the amended regulation help improve student achievement as measured against state achievement standards?

The amended regulation addresses absence from school, not academic achievement.

 

2. Will the amended regulation help ensure that all students receive an equitable education?

The amended regulation addresses absence from school, not equity issues.

 

3. Will the amended regulation help to ensure that all students' health and safety are adequately protected?

The amended regulation addresses absences from school, not health and safety issues.

 

4. Will the amended regulation help to ensure that all students' legal rights are respected?

The amended regulation addresses absence from school and will be the foundation for defining excused absences which does relate to a student's legal rights.

 

5. Will the amended regulation preserve the necessary authority and flexibility of decision makers at the local board and school level?

The amended regulation will preserve the necessary authority and flexibility of decision makers at the local board and school level since the specifics of policies on school attendance continue to be left to the local school districts.

6. Will the amended regulation place unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels?

The amended regulation will not place unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels.

 

7. Will decision making authority and accountability for addressing the subject to be regulated be placed in the same entity?

The decision making authority and accountability for addressing the subject to be regulated will remain in the same entity.

 

8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies?

The amended regulation is consistent with and not an impediment to the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies.

 

9. Is there a less burdensome method for addressing the purpose of the regulation?

The regulation needs to be amended to remove the parts that are covered in the Del. C.

 

10. What is the cost to the state and to the local school boards for compliance with the regulation?

There is no cost to the state and the local school boards for compliance with the regulation.

 

 

 

 

 

 

AS APPEARS IN APPENDIX A OF THE HANDBOOK FOR K-12 EDUCATION

 

NECESSARY AND LEGAL ABSENCES FROM THE RULES AND REGULATIONS OF THE STATE BOARD OF EDUCATION

 

The superintendent of schools of each local school district as the chief school officer is responsible for enforcing the attendance laws of the State and is the person who may excuse or cause to be excused any child for "Necessary and Legal Absences" in accordance with Title 14, Delaware Code, not subject to the "Rules and Regulations" of the State Board of Education. The following excuses are recognized as valid for Necessary and Legal Absences:

1. Illness of child, attested, if necessary by a physician's certificate.

2. Contagious disease in the home of the child, subject to regulations of the Division of Public Health.

3. Pregnancy of the student (14 Del. C., §122(b)(11).

4. Children are elsewhere receiving regular and thorough instruction during at least 180 days in the subjects prescribed for the public schools of the State in accordance with 14 Del. C., §2702.

5. Death in the child's own home, or in the home of the grandparents, time not to exceed one week. Funerals of other relatives or close friends, not to exceed one day, if in the locality; or three days, if at some distance or outside of the state.

6. Provisions of §2705, Title 14 of the Delaware Code describe exclusions which may apply to some handicapped children. Specific guidelines can be found in the Administrative Manual: Programs for Exceptional Children, March, 1987.

7. An amendment to §2706, Title 14 of the Delaware Code describes truancy cases.

8. Legal business.

9. Suspension or expulsion from school for misconduct. Suspension is the exclusion of a pupil from school for a short and definite period of time. Suspension is a temporary measure for handling a behavior problem and may be delegated to the chief school officer or a building principal. Expulsion is the exclusion of a pupil from school on a permanent basis or for an indefinite period of time. Expulsion can be authorized only by the local district board. The designation of suspension and expulsion as a "Necessary and Legal Absence" applies specifically to 14 Del. C., §2702 and §2706, and such authorized absence may not be construed to represent approval for the make-up of classwork missed due to suspension or expulsion.

10. The Superintendent of Schools shall have the authority for determining and approving other necessary and legal absences as deemed valid within the enforcement provisions of the compulsory attendance law.

a. Applications to remain out of school for an extended period of time shall be made to the local chief school officer.

 

AS AMENDED

 

600.5. Students - Necessary and Legal Absence

1.0 In addition to any absence otherwise excused by law, upon the request of a parent, guardian or other person legally having control of a student, the following shall be deemed to be valid reasons for a student's absence from school:

1.1 Contagious disease in the home of the student, subject to regulations of the Division of Public Health; or

1.2 In the case of the death of an immediate family member of the student, an absence not to exceed one week. Members of the student's immediate family shall be defined as: Father, mother, brother, sister, son, daughter, spouse, parent-in-law and grandparent; or

1.3 In the discretion of each district board or its designee, funerals of other relatives or close friends, not to exceed three days; or

1.4 Appearances both in and out of court to attend to legal matters where the student is a plaintiff, defendant, witness or other party; or

1.5 Such other absences as deemed reasonably necessary by the district board or its designee and not otherwise inconsistent with the provisions of any attendance law.

 

 

EDUCATIONAL IMPACT ANALYSIS PURSUANT

TO 14 DEL. C., SECTION 122(d)

 

USE OF QUICK RELIEF ASTHMASTIC INHALERS BY STUDENTS IN SCHOOLS

 

A. TYPE OF REGULATORY ACTION REQUESTED

 

Amendment to Existing Regulation

 

B. SYNOPSIS OF SUBJECT MATTER OF REGULATION

The Secretary seeks the consent of the State Board of Education to amend regulation 800.19 Possession, Use or Distribution of Drugs and Alcohol, found in the 800 section of the document Regulations of the Department of Education. The amendment adds a new section, 3.12, which permits students to have quick relief asthmatic inhalers in their possession and to use them during school hours. The purpose of this amendment is to exempt asthmatic inhalers from the phrase in the regulation that forbids students to be in possession of a drug or drug like substance. The amendment requires that a prescription for the drug and parent's permission for the student to self medicate be on record in the school nurse's office. It also permits the school nurse to refuse to let the child carry his or her own quick relief asthmatic inhaler if necessary.

 

C. IMPACT CRITERIA

 

1. Will the amendment to the regulation help improve student achievement as measured against state achievement standards?

The amendment to the regulation addresses health and safety issues, not academic achievement issues.

 

2. Will the amendment to the regulation help ensure that all students receive an equitable education?

The amendment to the regulation addresses health and safety issues, not equity issues.

 

3. Will the amendment to the regulation help to ensure that all students' health and safety are adequately protected?

The amendment to the regulation enables students to carry and use quick relief asthmatic inhalers in the schools in order to have them readily available in case of an asthma attack during school hours.

 

4. Will the amendment to the regulation help to ensure that all students' legal rights are respected?

The amendment to the regulation protects the rights of all involved including the school administration.

 

5. Will the amendment to the regulation preserve the necessary authority and flexibility of decision makers at the local board and school level?

The amendment to the regulation gives the school nurse final veto power if carrying the quick relief asthmatic inhaler would not be in the best interest of the child and the other students.

 

6. Will the amendment to the regulation place unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels?

The amendment to the regulation will not place unnecessary reporting or administrative requirements or mandates upon decision makers at the local board and school levels.

 

7. Will decision making authority and accountability for addressing the subject to be regulated be placed in the same entity?

The decision making authority and accountability for addressing the subject to be regulated will remain in the same entity.

8. Will the regulation be consistent with and not an impediment to the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies?

The regulation is consistent with and not an impediment to the implementation of other state educational policies, in particular to state educational policies addressing achievement in the core academic subjects of mathematics, science, language arts and social studies.

 

9. Is there a less burdensome method for addressing the purpose of the regulation?

No, the amendment had to be added to the regulation if the change in procedure was going to occur in the schools.

 

10. What is the cost to the state and to the local school boards of compliance with the regulation?

There is no cost to the state and to the local school boards for compliance with this regulation.

 

PROPOSED CHANGE

 

800.19. Possession, Use or Distribution of Drugs and Alcohol July 1998

1.0 The following policy on the possession, use, or distribution of drugs and alcohol shall apply to all public school districts.

1.1 The possession, use and/or distribution of alcohol, a drug, a drug-like substance, a look-alike substance and/or drug paraphernalia are wrong and harmful to students and are prohibited within the school environment.

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

1.3 Student motor vehicle use to and in the school environment is a privilege which may be extended by school districts to students in exchange for their cooperation in the maintenance of a safe school atmosphere. Reasonable suspicion of a student's use, possession or distribution of alcohol, a drug, a drug-like substance, a look-alike substance or drug paraphernalia, or of a student's possession of an unauthorized electronic beeper or other communication device in the school environment, may result in the student being asked to open an automobile in the school environment to permit school authorities to look for such items. Failure to open any part of the motor vehicle on the request of school authorities may result in the police being called to conduct a search, and will result in loss of the privilege to bring the vehicle on campus.

1.4 All alcohol, drugs, drug-like substances, look-alike substances and/or drug paraphernalia found in a student's possession shall be turned over to the principal or designee, and be made available, in the case of a medical emergency, for identification. All substances shall be sealed and documented, and, in the case of substances covered by 16 Del. C., ch 47, turned over to police as potential evidence.

2.0 The following definitions shall apply to this policy and will be used in all district policies.

2.1 "Alcohol" shall mean alcohol or any alcoholic liquor capable of being consumed by a human being, as defined in Section 101 of Title 4 of the Delaware Code including alcohol, spirits, wine and beer.

2.2 "Drug" shall mean any controlled substance or counterfeit substance as defined in Section 4701 of Title 16 of the Delaware Code including, for example, narcotic drugs such as heroin or cocaine, amphetamines, anabolic steroids, and marijuana, and shall include any prescription substance which has been given to or prescribed for a person other than the student in whose possession it is found.

2.3 "Drug paraphernalia" shall mean all equipment, products and materials as defined in Section 4701 of Title 16 of the Delaware Code including, for example, roach clips, miniature cocaine spoons and containers for packaging drugs.

2.4 "Prescription drugs" shall mean any substance obtained directly from or pursuant to a valid prescription or order of a practitioner, as defined in 16 Del. C., Sec. 4701 (24), while acting in the course of his or her professional practice, and which is specifically intended for the student in whose possession it is found.

2.5 "Drug-like substance" shall mean any noncontrolled and/or nonprescription substance capable of producing a change in behavior or altering a state of mind or feeling, including, for example, some over-the-counter cough medicines, certain types of glue, caffeine pills.

2.6 "Nonprescription medication" shall mean any over-the-counter medication; some of these medications may be a "drug-like substance."

2.7 "Look-alike substance" shall mean any noncontrolled substance which is packaged so as to appear to be, or about which a student makes an express or implied representation that the substance is, a drug or a noncontrolled substance capable of producing a change in behavior or altering a state of mind or feeling. See Del. C., Sec. 4752A.

2.8 "Possess," "possessing," or "possession" shall mean that a student has on the student's person, in the student's belongings, or under the student's reasonable control by placement of and knowledge of the whereabouts of, alcohol, a drug, a look-alike substance, a drug-like substance or drug paraphernalia.

2.9 "Use" shall mean that a student is reasonably known to have ingested, smoked or otherwise assimilated alcohol, a drug or a drug-like substance, or is reasonably found to be under the influence of such a substance.

2.10 "Distribute," "distributing" or "distribution" shall mean the transfer or attempted transfer of alcohol, a drug, a look-alike substance, a drug-like substance, or drug paraphernalia to any other person with or without the exchange of money or other valuable consideration.

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

2.12 "Expulsion" shall mean exclusion from school for a period determined by the local district not to exceed 180 school days. The process for readmission shall be determined by the local district. (State Board Approved January 1991, Revised August 1991)

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

3.1 A system of notification of each student and of his/her parent at the beginning of the school year, and whenever a student enters or re-enters the school during the school year, of the state and district policies and regulations.

3.2 A statement that it is anticipated that the state and district policies shall apply to all students, except that with respect to handicapped students, the federal law will be followed, and a determination of whether the violation of the alcohol and drug policy was due to the student's handicapping condition will be made prior to any discipline or change or placement in connection with the policy.

3.3 A written policy which sets out procedures for reporting incidents, how authorities and/or parents are to be contacted, and how confidentiality is to be maintained.

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

3.5 A written policy on search and seizure.

3.6 A program of intervention and assistance, which includes:

3.6.1 Having in each school building at least one person to whom staff can refer students to receive initial counseling and to obtain information on counseling/treatment services available to the student, on the student's rights, if any, to those services, and on the confidentiality which the student can expect

3.6.2 A written statement, available to be given to students or their parents, on what resources are available in the school environment and in the community for counseling and for drug and/or alcohol treatment

3.6.3 A system which ensures that all staff members are aware of resources in and referral procedures within the school environment, and encourage students to seek support and assistance

3.6.4 A system which encourages or requires that a student with alcohol or drug problems be assessed to determine the extent of alcohol or drug involvement and that the student receive the appropriate level of counseling or treatment needed

3.6.5 A policy of notification of the conditions under which the district will provide or pay for alcohol and/or drug counseling/treatment and/or testing, and the extent to which the cost of such services must be borne by the student.

3.7 A discipline policy which contains, at a minimum, the following penalties for infractions of state and district drug policies.

3.7.1 Use/Impairment: For a first offense, if a student is found to be only impaired and not in violation of any other policies, he/she will be suspended for up to 10 days, or placed in an alternative school setting for up to 10 days, depending upon the degree of impairment, the nature of the substance used, and other aggravating or mitigating factors. For a second or subsequent offense, a student may be expelled or placed in an alternative school setting for the rest of the school year.

3.7.2 Possession of alcohol, a drug, a drug-like substance, and/or a look-alike substance, in an amount typical for personal use, and/or drug paraphernalia: For a first offense, the student will be suspended for 5-10 days, or placed in an alternative school setting for 5-10 days. For a second or subsequent offense, a student may be expelled for the rest of the school year.

3.7.3 Possession of a quantity of alcohol, a drug, a drug-like substance, a look-alike substance and/or drug paraphernalia in an amount which exceeds an amount typical for personal use, and/or distribution of the above named substances or paraphernalia: the student will be suspended for 10 days, or placed in an alternative school setting for 10 days. Depending on the nature of the substance, the quantity of the substance and/or other aggravating or mitigating factors, the student also may be expelled.

3.8 A policy in cases involving a drug-like substance or a look-alike substance for establishing that the student intended to use, possess or distribute the substance as a drug.

3.9 A policy which establishes how prescription and non-prescription drugs shall be handled in the school environment and when they will be considered unauthorized and subject to these state and local policies.

3.10 A policy which sets penalties for the unauthorized possession of communication devices.

3.11 A policy which sets out the conditions for return after expulsion for alcohol or drug infractions.

3.12 Notwithstanding any of the foregoing to the contrary, all policies adopted by public school districts relating to the possession or use of drugs shall permit a student's discretionary use and possession of an asthmatic quick relief inhaler ("Inhaler") with individual prescription label; provided, nevertheless, that the student uses the inhaler pursuant to prescription or written direction from a state licensed health care practitioner; a copy of which shall be provided to the school district; and further provided that the parent(s) or legal custodian(s) of such student provide the school district with written authorization for the student to possess and use the inhaler at such student's discretion, together with a form of release satisfactory to the school district releasing the school district and its employees from any and all liability resulting or arising from the student's discretionary use and possession of the inhaler; and further provided that the school nurse may impose reasonable limitations or restrictions upon the student's use and possession of the inhaler based upon the student's age, level of maturity, behavior, or other relevant considerations.

4.0 The policy shall include the designation of a district committee composed of teachers, parents, school nurses, and community leaders. Any revisions in the local school district policy will be submitted to the Department of Education for review and approval.

 

* The above regulatory changes will be presented at the monthly meeting of the State Board of Education, March 18, 1999.

 

 

 

DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Statutory Authority: 16 Delaware Code,

Section 1143(e) (16 Del.C. 1143(e))

 

MANDATORY PRE-EMPLOYMENT CRIMINAL HISTORY RECORD CHECKS

AND DRUG TESTING REGULATIONS

 

As Authorized by Title 16 Del. Code Sections 1141-1142

 

PUBLIC NOTICE

 

Delaware Health & Social Services (DHSS), in compliance with Senate Bill 13 passed in the 140th General Assembly, has prepared draft regulations governing mandatory pre-employment criminal history record checks and drug testing for persons seeking to work in nursing homes or other facilities licensed under Title 16 Del. Code, Chapter 11. These requirements also apply to persons referred for placement in such facilities by temporary agencies.

The regulations lay out the responsibilities of employers, applicants, and DHSS. They contain a listing of the types of crimes, conviction for which disqualifies an individual from working in nursing homes or other facilities licensed under Title 16 Del. Code, Chapter 11.

 

INVITATION FOR PUBLIC COMMENT

 

Public hearings will be held as follows:

 

Tuesday, March 23, 1999, 10 am - noon

The Chapel, Herman Holloway Campus

Delaware Health & Social Services

1901 N. DuPont Highway

New Castle, DE

 

Thursday, March 25, 1999, 1 pm - 3 pm

University of Delaware Kent County Center*

69 Transportation Circle

Dover

 

[*Traveling on Rt. 13 south, when you come to the split, follow "Rt. 113 for beaches" to the left. DelDot's Admin. Bldg. is a short way up on the right. The UD Kent County Center is in the same complex as DelDot's Administration

Bldg.]

 

For clarifications or additional directions to either location, please call Barbara Baker at 577-4950

Written comments are also invited on these proposed new regulations and should be sent to the following address:

 

Linda Barnett

Division of Management Services

Delaware Health & Social Services

Herman Holloway Campus

1901 N. DuPont Highway

New Castle, DE 19720

 

Such comments must be received by April 1, 1999.

 

 

PROPOSED REGULATIONS FOR CRIMINAL HISTORY RECORD CHECKS AND PRE-EMPLOYMENT DRUG TESTING FOR PERSONS WORKING IN NURSING HOMES AND OTHER FACILITIES LICENSED UNDER 16 Del. C. Ch. 11.

LEGAL BASIS

1. The legal base for these regulations is in the Delaware Code, Title 16, Chapter 11, Sections 1141 and 1142.

 

PURPOSE

2. The overall purpose of these regulations is to ensure the safety and well-being of residents of facilities licensed pursuant to 16 Del. C. Ch. 11. To this end, persons selected for employment in these facilities, effective March 31, 1999, will be subject to pre-employment criminal history checks and pre-employment drug testing. Further, these regulations apply to any person referred by a temporary agency, as herein defined, to such facilities for temporary employment who was hired by such agency on or after March 31, 1999.

 

DEFINITIONS

3. "Nursing home" means a residential facility that provides shelter and food to more than one person who, because of their physical and/or mental condition, require a level of care and services suitable to their needs to contribute to their health, comfort, and welfare; and who are not related within the second degree of consanguinity to the controlling person or persons of the facility. The facilities covered here are those licensed pursuant to 16 Del. C. Ch. 11, and include but are not limited to nursing facilities (commonly referred to as nursing homes); assisted living facilities; intermediate care facilities for persons with mental retardation; neighborhood group homes; family care homes; and rest residential facilities.

4. "Applicant" means any person seeking employment in a nursing home; a current employee of such facility who seeks promotion within the same facility; and/or a person hired on or after March 31, 1999, by a temporary agency (as defined below and including, but not limited to, contractors and home health agencies) who is sent by that agency to work in a nursing home.

5. "Contractor or Temporary Agency" means any person or organization that provides services to a nursing home where the work responsibilities are located in the facility on a regular or intermittent basis and where the nursing home's need for the service is ongoing (i.e., whether or not the specific person performs the service regularly or intermittently, the nursing home will need to ensure that those services are provided). This includes, but is not limited to, such services as housekeeping, food service, security, physicians, beauticians, and therapists. It does not include companies or vendors working on the physical structures, systems or grounds of nursing homes on a temporary, as needed, basis. For the purposes of these regulations, contractors are included in the definition of temporary agencies and are therefore subject to the same requirements as temporary agencies.

6. "Conditional Employment" is the period of time during which an applicant is working in a nursing home while his/her employer has not received the results of (a) the State criminal history record, (b) the Federal criminal history record, and (c) the drug test.

7. "Department or DHSS" means Delaware Health & Social Services.

8. "Disqualifying convictions or disqualifying crimes" are the items delineated in Section 17 of these regulations.

9. "Employer" is any person, business entity, management company, temporary agency, or other organization that hires persons to work in a nursing home or that places persons for work in a nursing home.

10. "Evidence" means verification from the State Bureau of Identification or designee that the applicant has been fingerprinted and that his/her criminal history records have been requested. In addition, evidence means documentation that drug testing has been performed.

11. "Final Employment" is contingent upon the employer's receipt of the State Bureau of Identification criminal history record containing evidence of no disqualifying crimes or of any factors which would render that applicant unsuitable for employment in a nursing home; a report by the Department that there are no disqualifying crimes in such person's Federal criminal record; and the results of the drug testing.

12. To"hire" means to begin employment of an applicant after March 31, 1999, or to pay wages for the services of a person who has not worked for the employer during the preceding twelve-month period.

13. "Illegal drug" means: marijuana/cannabis; cocaine; opiates including heroin; phencyclidine (PCP); amphetamines; and any other illegal drug subsequently specified by the Department in the absence of a valid physician prescription.

14. "Temporary agency or contractor" means any business organization or person that places persons with another business organization to perform services. As used in these regulations, a temporary agency includes home health agencies which make such placements and contractors.

 

PERSONS SUBJECT TO THE LAW

15. All applicants hired on or after March 31, 1999, and all current employees who seek promotion in a nursing home are subject to the provisions of 16 Del C. 1141 and 1142. In addition, all persons hired on or after March 31, 1999, by a temporary agency (as defined herein) and placed on or after March 31, 1999, at a nursing home are subject to the provisions of 16 Del C. 1141 and 1142.

 

FREQUENCY OF CRIMINAL HISTORY RECORD CHECKS

16. Any applicant who has been the subject of a qualifying background check in Delaware within the previous 5 years shall be exempt from 16 Del C. Section 1141, except that the applicant is not exempt from subsequent employer access to the information contained in that background check. To qualify, such a check must include both State and Federal criminal history record checks and be pursuant to 16 Del C. Section 1141. However, employers, at their own expense, shall have the right to require more frequent background checks.

 

CRITERIA FOR UNSUITABILITY FOR EMPLOYMENT

17. The following types of criminal convictions (or such crimes, if committed in another jurisdiction, which are comparable under Delaware law) automatically disqualify a person from working in a nursing home, if the person was convicted of the offense within the time parameters specified:

18. In regard to other criminal convictions, the following criteria are to be used in determining whether a person is suitable for employment in a nursing home:

A. Type of offense(s)

B. Frequency of offense(s)

C. Length of time since the offense(s)

D. Age at the time of the offense(s)

E. Severity of the offense(s)

F. Record since the offense(s)

G. Nature of the offense(s) in relation to the type of job assignment

H. Disposition of the offense(s).

 

SANCTIONS

19. Sanctions against applicants shall be applied and enforced in the following circumstance(s):

A. Failure by an applicant to disclose relevant criminal history information on a criminal history record request form that is subsequently disclosed as a result of the criminal history record check shall result in a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

B. Failure of an applicant to comply with pre-employment drug testing, as required, shall result in a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

C. Violations will be reported by the employer to the Division of Long Term Care Residents Protection.

20. Sanctions against employers shall be applied and enforced in the following circumstance(s):

A. An employer who hires an applicant conditionally before receiving verification that the applicant has been fingerprinted and that the State and Federal criminal history record checks have been requested shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

B. An employer who hires an applicant for final employment and fails to request and/or fails to obtain a report of the person's entire criminal history record from the State Bureau of Identification shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

C. An employer who hires an applicant for final employment and fails to request and/or fails to obtain a written report regarding suitability of the applicant based on his or her Federal criminal history shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

D. Employer failure to comply with the pre-employment drug testing law shall result in a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

 

EMPLOYER RESPONSIBILITIES

21. Criminal history record checks and drug testing are to be completed on applicants who have been prescreened and to whom an offer of employment may be made. Payment for drug testing is the responsibility of the employer or the applicant.

22. Conditional employment cannot begin until the employer has received evidence that the applicant's State and Federal criminal history records have been requested, he/she has been fingerprinted, and he/she has requested the appropriate drug testing. Under no circumstances shall an applicant be employed on a conditional basis for more than 2 months if the drug test results have not been received by his/her employer.

23. An employer whose nursing home includes both licensed and unlicensed areas must ensure that all persons who perform services in the licensed areas comply with the law.

24. The employer shall ensure that every application for employment at a nursing home specifies that the applicant is required to provide any and all information necessary to obtain a report of the person's entire criminal history record from the State Bureau of Identification and a report of the person's entire Federal criminal history record pursuant to the Federal Bureau of Investigations appropriation of Title II of Public Law 92-544. In addition, every application for employment shall contain a statement that must be signed by the applicant in which the applicant grants full release for the employer to request and obtain any such records or information contained on a criminal history record.

25. The employer shall ensure that a criminal history record request form has been completed and that the employer copy is maintained in its files.

26. The employer shall also maintain a signed copy of a verification of providing fingerprints to the Delaware State Police form.

27. When exigent circumstances exist, and an employer must fill a position in order to maintain the required level of service, the employer may hire an applicant on a conditional basis when the employer receives evidence that the applicant has actually had the appropriate drug testing, as long as the person has also provided verification of fingerprinting. All persons hired shall be informed in writing and shall acknowledge, in writing, that his/her drug test results have been requested.

28. The employer must ensure that no applicant remains employed in conditional status for more than two months without receiving the results of the mandatory drug testing. If the drug testing results are not received within two months, the applicant must be terminated from employment, or in the case of an applicant seeking promotion, the applicant must be demoted or removed from employment in the nursing home.

29. The employer must provide to the Department a copy of each applicant's mandatory drug test results within 10 business days of their receipt . Along with the results, or as soon thereafter as the decision is made, the employer shall notify the Department as to whether the applicant shall remain employed.

30. When the employer is notified of conviction of one or more disqualifying crimes in either the State or Federal criminal history of an applicant, the employer shall terminate the applicant. A copy of or documentation of the termination notification shall be sent to the Department and a copy maintained in the facility's files.

31. If an employer wishes to have a criminal history record check conducted on an applicant who has been the subject of a qualifying State and Federal background check within the previous 5 years, the cost for this must be borne by the employer. Payment must be made directly to the State Police. The Department will, at no cost, provide the results of the Federal Bureau of Investigation information, just as it would for an applicant who had not had such a check conducted within the previous 5 years.

32. If a person is fingerprinted under the auspices of these regulations more than once during a five-year period, the cost of that fingerprinting will not be borne by the State. The potential employer is required to confirm with DHSS that the applicant has been previously fingerprinted. If billed, the Department will return such invoices to the State Police so that they can obtain payment from the employer specified on the criminal history record request form. Such employer may obtain payment from the applicant.

33. The employer will notify the Department if an applicant is separated from employment for any reason prior to completion of the criminal history check process.

34. The employer will have the responsibility for using the results of the criminal history record check and the drug testing as factors in making the determination of suitability for final employment, unless the State and/or Federal criminal history record check identifies the presence of a conviction of one or more disqualifying crimes, in which case the applicant is automatically disqualified for final employment and must be terminated.

35. The employer will notify the applicant of the findings.

36. The employer will notify the Department of the names of all persons who were offered and accepted conditional and final employment.

37. It is recommended that employers require that all new employees after March 31, 1999, notify them of any subsequent convictions. Subsequent convictions may impact the suitability of employment of the employee, as determined by the employer.

 

RESPONSIBILITIES OF TEMPORARY AGENCIES

38. As employers, temporary agencies are responsible for all items delineated above under the section titled "EMPLOYER RESPONSIBILITIES" (sections 21-37).

39. In addition, temporary agencies are responsible for the cost of criminal history record checks.

40. Also, temporary agencies are required to inform nursing homes of any criminal background identified in the criminal history information provided by the State Bureau of Identification and the Federal report, as summarized by the Department, regarding any person placed or referred for work at such facility. The temporary agency must have each applicant sign a full release giving the agency permission to provide any such criminal history information received about him/her to any nursing home where the person is placed to work.

41. Temporary agencies are required to inform nursing homes of the mandatory drug test results of persons placed or referred for work in such facilities. Applicants shall sign a full release giving the agency permission to provide any such information to any nursing home where they are placed to work.

 

APPLICANTS' RESPONSIBILITIES

42. Applicants are responsible for completing all information accurately and completely on a criminal history record request form; a verification of providing fingerprints to the Delaware State Police form; and any form provided by the employer for use in obtaining mandatory pre-employment drug testing. Any applicant who refuses to complete any one or more of these forms is deemed to have voluntarily withdrawn his/her application.

43. The applicant is responsible for having his/her fingerprints taken and returning a verification of providing fingerprints to the Delaware State Police form to the employer.

44. The applicant is responsible for informing any potential employer if he/she has already been fingerprinted under the jurisdiction of these regulations. The potential employer is required to confirm with DHSS that the applicant has been previously fingerprinted. The cost for additional fingerprinting, done above and beyond the one fingerprinting per five-year period required by these regulations, shall not be borne by the State.

45. The applicant is responsible for completing the required drug testing and providing verification to the employer.

 

THE DEPARTMENT'S RESPONSIBILITIES

46. The Department is responsible for promulgating these regulations and revising them, as the need may arise.

47. Since an applicant's Federal criminal record may not be provided to a privately-owned entity or to the applicant, the Department will issue a report to the employer based upon the information received.

48. Once the Department has received all necessary documentation , it shall perform a review, guided by criteria and timelines developed by the Department, and issue a written summary of findings to the employer. If conviction of a disqualifying crime is included on the State or Federal criminal history report, the Department will immediately notify the employer, prohibiting either the hire or continued conditional employment of the applicant.

 

CONFIDENTIALITY

Title 11, subsection 8513 (c) (1) of the Delaware Code permits the State Bureau of Identification to "furnish information pertaining to the identification and conviction data of any person...of whom the Bureau has record...to ...[i]ndividuals and agencies for the purpose of employment of the person whose record is sought, provided...[t]he use of the conviction data shall be limited to the purpose for which it was given..."

49. The Department shall store written and electronically-recorded criminal history record information in a secure manner, to provide for the confidentiality of records and to protect against any possible threats to their security and integrity.

50. The Department shall limit the use of the criminal history record information to its purpose of determining suitability for employment.

51. The Department shall not release to employers, as defined in these regulations, copies of actual written reports of criminal history records prepared by the Federal Bureau of Investigation.

52. The following procedure shall be established to permit the review of criminal history record files by the applicant:

A. An applicant shall submit a request in writing to the Department for the on-site review of his/her criminal history record file.

B. An appointment shall be made for the applicant to review the record at the Department. Photo identification will be required at the time of the review.

C. The record shall be reviewed in the presence of a Department employee.

D. Written documentation of the date and time of the review and the name of those present shall be filed in the criminal history record file for the applicant.

E. The Department shall not remove criminal history records (written and electronic) from the secure files for any purpose other than to permit review by the named applicant.

53. Criminal history record information shall not be disseminated to any persons other than the applicant, his/her employer or subsequent employer(s), nursing homes to which a person is placed by a temporary agency, or the Department (11 Del. C. Section 513(d)).

 

 

Division of Social Services

Statutory Authority: 31 Delaware Code,

Section 107 (31 Del.C. 107)

 

PUBLIC NOTICE

Medicaid / Medical Assistance Program

 

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and with 42CFR §447.205, and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 505, the Delaware Department of Health and Social Services (DHSS) / Division of Social Services / Medicaid Program is amending its durable medical equipment and general policy provider manual(s).

Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to the Director, Medical Assistance Programs, Division of Social Services, P.O. Box 906, New Castle, DE 19720 by March 31, 1999.

 

REVISION:

 

Durable Medical Equipment Manual

 

External Ambulatory Infusion Pump, Insulin

 

The purchase of an external ambulatory infusion pump, insulin, may be covered by the DMAP only in situations where there is medical documentation that the pump use is reasonable and medically necessary for the individual patient. A detailed letter of medical necessity from an endocrinologist is required and must address the following:

 

 

When requesting prior authorization for the purchase of an external ambulatory infusion pump, insulin, the durable medical equipment provider is required to submit a Medicaid Certificate of Medical Necessity. If approved, the following supplies may be billed separately using the appropriate codes listed in Appendix A:

 

Replacement parts, such as batteries, piston rods, and adapters may also be billed separately using the appropriate code in Appendix A. Any additional medically necessary supplies, related to the use of the external ambulatory infusion pump, insulin, must be prior authorized. A letter detailing the medical necessity of the additional supplies must be submitted to the Medical Review Team.

 

General Policy Manual

 

Please Note: The Childhood Vaccination Schedule that currently appears in the general policy is being moved from the policy section into an Appendix within the manual. The schedule is not shown as part of the revisions since the layout would be difficult to place in the Register.

 

Immunization Vaccines for Children Program

 

For Children Ages 0 Through 18 Years

 

The state of Delaware participates in the Vaccines for Children (VFC) Program which supplies free vaccines to providers for VFC eligible children under age 19. Children eligible to receive VFC-provided vaccines include the following: 1) children who receive Medicaid; 2) uninsured children; and 3) children who are American Indian or Alaskan Native. In addition, children who have health insurance that does not cover vaccines can receive VFC-provided vaccines at federally qualified health centers and rural health clinics. The VFC program is operationally administered by the Division of Public Health. Providers must enroll in the VFC Program to receive free vaccines and to receive an administration fee. For further information and enrollment materials please call DPH at 1-800-282-8672.

Medicaid does not pay providers for the cost of vaccines available through the VFC Program, but will pay an administration fee for each immunization given to a Medicaid eligible child not enrolled in the Diamond State Health Plan, the State's Medicaid managed care program . Under the DSHP, the participating Managed Care Organizations (MCOs) are responsible for all primary care services including immunizations. The administration fees for DSHP enrolled children are accounted for in the capitated rate paid to the MCOs, therefore the Medicaid Program does not pay providers for immunizations administered to DSHP enrolled children. MCOs determine their own policies on reimbursement of administration fees.

Providers will be paid the administration fee for children who have not yet been enrolled in a MCO and for those Medicaid eligible children who are ineligible for participation in the DSHP. The State of Delaware will also pay VFC-enrolled providers the administration fee for immunizations given to non-Medicaid VFC eligible children. Enrolled providers must submit an Immunization Registry (IR) form to the Division of Public Health where the immunization data is recorded and passed electronically to EDS for adjudication and payment.

The following immunization vaccines CPT codes represent the vaccines currently covered under the VFC Program are identified in the Childhood Immunization Schedule found in Appendix L. VFC participating providers will receive an administration fee (as specified above) for these vaccines when administered according to the schedule recommended by the Advisory Committee on Immunization Practices (ACIP).

90700 - 90709, 90711 - 90713, 90718 - 90721, 90724, 90730, 90737, 90741, 90742, 90744, 90745, and 90747

 

Generally, only combined antigen vaccines will be provided through the VFC Program. Single antigen vaccines will be available and related administration fees reimbursable only when a normally appropriate combined antigen is contraindicated. Varicella vaccine (CPT codes 90710 and 90716) and pneumococcal vaccine (CPT code 90732) are not currently available through the VFC Program and may be billed directly to the DMAP.

 

For Adults Ages 19 Years and Older

 

Providers may continue to be reimbursed for the actual cost of medically necessary vaccines provided to adults age 19 or older. NOTE: Vaccines required for travel outside the United States are not covered. The following vaccine CPT codes will continue to be reimbursed at cost for adults over 18:

 

90703 - 90710, 90713, 90716, 90718, 90719, 90730, 90741, 90742, 90745 - 90747

 

Claims for adult immunizations should be sent directly to EDS for processing and payment. They should not be sent to the Division of Public Health's Immunization Registry. Administration fees will not be reimbursed separately for adult immunizations. The administration fee will continue to be considered part of the office visit fee paid in addition to the payment made for the vaccine.

 

Non-Covered Services

 

Some services are NEVER covered by the DMAP except if covered by Medicare or are in a managed care organization's benefit package. These services include, but are not limited to:

 

 

Division of Social Services

Statutory Authority: 31 Delaware Code,

Section 512(1) (31 Del.C. 512(1))

 

PUBLIC NOTICE

 

Delaware Health and Social Services is proposing changes to regulations contained in the Division of Social Services Manual Section 9018, 9060, and 9068. These changes are initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512. Written materials and suggestions by interested persons for related to this proposal must be forwarded by March 31, 1999, to the Director, Division of Social Services,

P. O. Box 906, New Castle, DE 19720.

 

COMMENT PERIOD

 

Any person who wishes to make petitions for reconsideration or revision thereof, such petitions must be forwarded by March 31, 1999 to the Director, Division of Social Services, P. O. Box 906, New Castle, DE 19720.

 

SUMMARY OF REGULATIONS:

 

 

NATURE OF PROPOSED REVISIONS:

 

Proposed Policy:

 

9018.2 Work Requirements for Able-Bodied Adults Without Dependents Effective November 22, 1996

 

Individuals are ineligible to continue to receive food stamps if, during the preceding 36-month period they received food stamps at least three (3) months (consecutive or otherwise) while they did not either:

 

 

Work is defined as paid or non-paid employment, including volunteer work.

Qualifying work programs include programs under:

 

 

Exemptions

Individuals are exempt from this work requirement if the individual is:

 

 

Regaining eligibility

Individuals denied eligibility under this work requirement, or who would have been denied under this work requirement if they had reapplied, can regain eligibility if during a 30-day period the individual:

 

 

Individuals who regain eligibility based on the requirements above will remain eligible as long as they meet the above requirements.

Individuals who lose their employment or cease participation in work or work supplementation programs may continue to receive food stamps for up to three (3) consecutive months beginning from the date DSS is notified that work has ended.

The only remaining cure during the 36-month period is for the individual to:

 

9060 INCOME DEDUCTIONS

 

E. Child support payments deduction - Legally obligated child support payments made to or for, children who live outside of the household. Only child support payments that are legally obligated can be allowed as a deduction. This also includes:

a) Amounts paid out of the household's current income to make up for months in which the household did not meet its obligation, except for amount paid through tax intercept, and

b) The value of legally binding child support that is provided in-kind, such as payment of rent directly to the landlord,

c) Payments provided for health care,

d) Payments for education,

e) Payments for recreation,

f) Payments for clothing,

g) Payments to meet other specific needs of a child or children, and

h) Payments to cover attorney's fee, interest, and court costs.

 

The following are examples of how to treat child support payments:

 

1. Mr. A is court ordered to pay Mrs. A $100 a week in child support. He also pays $30 a month child support for arrears to make up the months he was not able to pay. Mr. A is eligible for a $430 child support deduction from his current income.

 

2. Mr. C is court ordered to pay Mrs. C $800 a month in child support. He pays $500 a month directly to the landlord for Mrs. C's rent and $100 directly to the utility company for Mrs. C's electric. Mrs. C receives the $200 balance in cash. Mr. C is eligible for a $800 child support deduction from his current income.

 

Alimony payments are not included in the child support deduction.

 

9068 Certification Periods

[273.10(f)]

 

Certification periods means the period of time within which a household shall be eligible to receive benefits. At the expiration of each certification period, entitlement to food stamp benefits ends. Further eligibility will be established only upon a recertification based upon a newly completed application, an interview and verification. Under no circumstances will benefits be continued beyond the end of a certification period without a new determination of eligibility.

The certification periods for all households shall not exceed 12 months.

12-month certification periods are assigned to households when:

 

 

7-month certification periods are assigned to households when:

 

 

6-month certification periods are assigned to households when:

 

 

3-month certification periods are assigned to households when:

 

 

 

DEPARTMENT OF INSURANCE

Statutory Authority: 18 Delaware Code,

Section 314, 2503 (18 Del.C. 314, 2503)

 

Notice of Public Hearing

 

Insurance Commissioner Donna Lee Williams hereby gives notice that a public hearing will be held on Tuesday, March 23, 1999 at 10:00 a.m. in the 2nd Floor Conference Room of the Delaware Insurance Department at 841 Silver Lake Boulevard, Dover, DE 19904.

 

The purpose of the Hearing is to solicit comments from the insurance industry and the general public on the proposed revisions to Insurance Department Regulation 41, Medicare Supplement Insurance Minimum Standards.

 

The Hearing will be conducted in accordance with the Delaware Administrative Procedures Act, 29 Del.C. Chapter 101. Comments are being solicited from any interested party. Comments may be in writing or may be presented orally at the hearing. Written comments must be received by the Department of Insurance no later than Friday, March 19, 1999 and should be addressed to Fred A. Townsend , III, Deputy Insurance Commissioner, 841 Silver Lake Boulevard, Dover, DE 19904. Those wishing to testify or those intending to provide oral testimony must notify Fred A. Townsend, III at 302.739.4251 ext. 157 or 800-.282.8611 no later than Friday, March 19, 1999.

 

Dated: February 18, 1999

Regulation 41

 

Medicare Supplement Insurance Minimum Standards

 

January 1, 1992

Amended Effective April 9, 1992

Amended Effective April 1, 1996

Amended Effective November 20, 1998

 

Table of Contents

 

Section 1. Purpose

Section 2. Authority

Section 3. Applicability Scope

Section 4. Definitions

Section 5. Policy Definitions and Terms

Section 6. Policy Provisions

Section 7. Minimum Benefit Standards for Policies or Certificates Issued for Delivery Prior to January 1, 1992

Section 8. Minimum Benefit Standards for Policies or Certificates Issued for Delivery After January 1, 1992

Section 9. Standard Medicare Supplement Benefit Plans

Section 10. Medicare Select Policies

Section 11. Open Enrollment

Section 12. Guaranteed Issue for Eligible Persons

Section 1213. Standards for Claims Payment

Section 1314. Loss Ratio Standards and Refund or Credit of Premiums

Section 1415. Filing and approval of Policies and Certificates and Premium Rates

Section 1516. Permitted Compensation Arrangements

Section 1617. Required Disclosure Provisions

Section 1718. Requirements for Application Forms and Replacement Coverage

Section 1819. Filing Requirements for Advertising

Section 1920. Standards for Marketing

Section 2021. Appropriateness of Recommended Purchase and Excessive Insurance

Section 2122. Reporting of Multiple Policies

Section 2322. Prohibition Against Preexisting Conditions, Waiting Periods, Elimination Periods and Probationary Periods in Replacement Policies or Certificates

Section 2324. Separability

Section 2425. Effective Date

 

Appendix A Reporting Form for Calculation of Loss Ratios

Appendix B Form for Reporting Duplicate Policies

Appendix C Disclosure Statements

 

Section 1. Purpose

 

The purpose of this regulation is to provide for the reasonable standardization of coverage and simplification of terms and benefits of Medicare supplement policies or contracts; to facilitate public understanding and comparison of such policies; to eliminate provisions contained in such policies which may be misleading or confusing in connection with the purchase of such policies or with the settlement of claims; and to provide for full disclosures in the sale of accident and sickness insurance coverages to persons eligible for Medicare.

 

Section 2. Authority

 

This regulation is issued pursuant to the authority vested in the Commissioner under Title 18, Delaware Code, Sections 314 and 3403.

 

Section 3. Applicability and Scope

A. Except as otherwise specifically provided in Sections 7, 12, 13, 16 and 21, this regulation shall apply to:

(1) All Medicare supplement policies delivered or issued for delivery in this State on or after the effective date of this regulation, and

(2) All certificates issued under group Medicare supplement policies which certificates have been delivered or issued for delivery in this State.

B. This regulation shall not apply to a policy or contract of one or more employers or labor organizations, or of the trustees of a fund established by one or more employers or labor organizations, or combination thereof, for employees or former employees, or a combination thereof, or for members or former members, or a combination thereof, of the labor organizations.

 

Section 4. Definitions

 

For purposes of this regulation:

A. "Applicant" means:

(1) In the case of an individual Medicare supplement policy, the person who seeks to contract for insurance benefits, and

(2) In the case of a group Medicare supplement policy, the proposed certificateholder.

B. "Bankruptcy" means when a Medicare+Choice organization that is not an issuer has filed, or has had filed against it, a petition for declaration of bankruptcy and has ceased doing business in the state.

CB. "Certificate" means any certificate delivered or issued for delivery in this state under a group Medicare supplement policy.

DC. "Certificate Form" means the form on which the certificate is delivered or issued for delivery by the issuer.

E. Continuous period of creditable coverage" means the period during which an individual was covered by creditable coverage, if during the period of the coverage the individual had no breaks in coverage greater than sixty-three (63) days.

F. (1) "Creditable coverage" means, with respect to an individual, coverage of the individual provided under any of the following:

(a) A group health plan;

(b) Health insurance coverage;

(c) Part A or Part B of Title XVIII of the Social Security Act (Medicare);

(d) Title XIX of the Social Security Act (Medicaid), other than coverage consisting solely of benefits under section 1928;

(e) Chapter 55 of Title 10 United States Code (CHAMPUS)

(f) A medical care program of the Indian Health Service or of a tribal organization;

(g) A State health benefits risk pool;

(h) A health plan offered under Chapter 89 of Title 5 United States Code (Federal Employees Health Benefits Program);

(i) A public health plan as defined in federal regulation; and

(j) A health benefit plan under Section 5(e) of the Peace Corps Act (22 United States Code 2504(e)).

(2) "Creditable coverage" shall not include one or more, or any combination of, the following:

(a) Coverage only for accident or disability income insurance, or any combination thereof;

(b) Coverage issued as a supplement to liability insurance;

(c) Liability insurance, including general liability insurance and automobile liability insurance;

(d) Workers' compensation or similar insurance;

(e) Automobile medical payment insurance;

(f) Credit-only insurance;

(g) Coverage for on-site medical clinics; and

(h) Other similar insurance coverage, specified in federal regulations, under which benefits for medical care are secondary or incidental to other insurance benefits.

(3) "Creditable coverage" shall not include the following benefits if they are provided under a separate policy, certificate, or contract of insurance or are otherwise not an integral part of the plan:

(a) Limited scope dental or vision benefits;

(b) Benefits for long-term care, nursing home care, home health care, community-based care, or any combination thereof; and

(c) Such other similar, limited benefits as are specified in federal regulations.

(4) "Creditable coverage" shall not include the following benefits if offered as independent, noncoordinated benefits:

(a) Coverage only for a specified disease or illness; and

(b) Hospital indemnity or other fixed indemnity insurance.

(5) "Creditable coverage" shall not include the following if it is offered as a separate policy, certificate of contract of insurance:

(a) Medicare supplemental health insurance as defined under Section 1882(g)(1) of the Social Security Act;

(b) Coverage supplemental to the coverage provided under Chapter 55 of Title 10, United States Code; and

(c) Similar supplemental coverage provided to coverage under a group health plan.

G. "Employee welfare benefit plan" means a plan, fund or program of employee benefits as defined in 29 U.S.C. Section 1002 (Employee Retirement Income Security Act).

H. "Insolvency" means when an issuer, licensed to transact the business of insurance in this state, has had a final order of liquidation entered against it with a finding of insolvency by a court of competent jurisdiction in the issuer's state of domicile.

DI. "Issuer" includes insurance companies, fraternal benefit societies, health care service plans, health maintenance organizations, and any other entity delivering or issuing for delivery in this state Medicare supplement policies or certificates.

EJ. "Medicare" means the "Health Insurance for the Aged Act," Title XVIII of the Social Security Amendments of 1965, as then constituted or later amended.

K. "Medicare+Choice plan" means a plan of coverage for health benefits under Medicare Part C as defined in [refer to definition of Medicare+Choice plan in Section 1859 found in Title IV, Subtitle A, Chapter 1 of P.L. 105-33], and includes:

(1) Coordinated care plans which provide health care services, including but not limited to health maintenance organization plans (with or without a point-of-service option), plans offered by provider-sponsored organizations, and preferred provider organization plans;

(2) Medical savings account plans coupled with a contribution into a Medicare+Choice medical savings account; and

(3) Medicare+Choice private fee-for-service plans.

FL. "Medicare Supplement Policy" means a group or individual policy of accident and sickness insurance or a subscriber contract other than a policy issued pursuant to a contract of hospital and medical service associations or health maintenance organizations, under Section 1876 or Section 1833 of the Federal Social Security Act (42 U.S.C. Section 1395 et seq.) or an issued policy under a demonstration project specified in 42 U.S.C. § 1395ss(g)(1), which is advertised, marketed or designed primarily as a supplement to reimbursements under Medicare for the hospital, medical or surgical expenses of persons eligible for Medicare.

GM. "Policy Form" means the form on which the policy is delivered or issued for delivery by the issuer.

N. "Secretary" means the Secretary of the United States Department of Health and Human Services.

 

Section 5. Policy Definitions and Terms

 

No policy or certificate may be advertised, solicited or issued for delivery in this state as a Medicare supplement policy or certificate unless such policy or certificate contains definitions or terms which confirm to the requirements of this section.

A. "Accident," "Accidental Injury," or "Accidental Means" shall be defined to employ "result" language and shall not include words which establish an accidental means test or use words such as "external, violent, visible wounds" or similar words of description or characterization.

(1) The definition shall not be more restrictive than the following: "Injury or injuries for which benefits are provided means accidental bodily injury sustained by the insured person which is the direct result of an accident, independent of disease or bodily infirmity or any other cause, and occurs while insurance coverage is in force."

(2) The definition may provide that injuries shall not include injuries for which benefits are provided or available under any workers' compensation, employer's liability or similar law, or motor vehicle no-fault plan, unless prohibited by law.

B. "Benefit Period" or "Medicare Benefit Period" shall not be defined more restrictively than as defined in the Medicare program.

C. "Convalescent Nursing Home," "Extended Are Facility," or "Skilled Nursing Facility" shall not be defined more restrictively than as defined in the Medicare program.

D. "Health Care Expenses" means expenses of health maintenance organizations associated with the delivery of health care services, which expenses are analogous to incurred losses of insurers.

 

Expenses shall not include:

(1) Home office and overhead costs;

(2) Advertising costs;

(3) Commissions and other acquisition costs;

(4) Taxes;

(5) Capital costs;

(6) Administrative costs; and

(7) Claims processing costs.

E. "Hospital" may be defined in relation to its status, facilities and available services or to reflect its accreditation by the Joint Commission on Accreditation of Hospitals, but not more restrictively than as defined in the Medicare program.

F. "Medicare" shall be defined in the policy and certificate. Medicare may be substantially defined as "The Health Insurance for the Aged Act, Title XVIII of the Social Security Amendments of 1965 as Then Constituted or Later Amended," or "Title I, Part I of Public Law 89-97, as Enacted by the Eighty-Ninth Congress of the United States of America and popularly known as the Health Insurance for the Aged Act, as then constituted and any later amendments or substitutes thereof," or words of similar import.

G. "Medicare Eligible Expenses" shall mean expenses of the kinds covered by Medicare, to the extent recognized as reasonable and medically necessary by Medicare.

H. "Physician" shall not be defined more restrictively than as defined in the Medicare program.

I. "Sickness" shall not be defined to be more restrictive than the following:

"Sickness means illness or disease of an insured person which first manifests itself after the effective date of insurance and while the insurance is in force."

The definition may be further modified to exclude sicknesses or diseases for which benefits are provided under any workers' compensation, occupational disease, employer's liability or similar law.

Section 6. Policy Provisions

A. Except for permitted preexisting condition clauses as described in Section 7A(1) and Section 8A(1) of this Regulation, no policy or certificate may be advertised, solicited or issued for delivery in this state as a Medicare supplement policy if the policy or certificate contains limitations or exclusions on coverage that are more restrictive than those of Medicare.

B. No Medicare supplement policy or certificate may use waivers to exclude, limit or reduce coverage or benefits for specifically named or described preexisting diseases or physical conditions.

C. No Medicare supplement policy or certificate in force in the State shall contain benefits which duplicate benefits provided by Medicare.

 

Section 7. Minimum Benefit Standards for Policies or Certificates Issued for Delivery Prior to January 1, 1992

 

No policy or certificate may be advertised, solicited or issued for delivery in this State as a Medicare supplement policy or certificate unless it meets or exceeds the following minimum standards. These are minimum standards and do not preclude the inclusion of other provisions or benefits which are not inconsistent with these standards.

A. General Standards.

The following standards apply to Medicare supplement policies and certificates and are in addition to all other requirements of this regulation.

(1) A Medicare supplement policy or certificate shall not exclude or limit benefits for losses incurred more than six (6) months from the effective date of coverage because it involved a preexisting condition. The policy or certificate shall not define a preexisting condition more restrictively than a condition for which medical advice was given or treatment was recommended by or received from a physician within six (6) months before the effective date of coverage.

(2) A Medicare supplement policy or certificate shall not indemnify against losses resulting from sickness on a different basis than losses resulting from accidents.

(3) A Medicare supplement policy or certificate shall provide that benefits designed to cover cost sharing amounts under Medicare will be changed automatically to coincide with any changes in the applicable Medicare deductible amount and co-payment percentage factors. Premiums may be modified to correspond with such changes.

(4) A "noncancellable," "guaranteed renewable," or "noncancellable and guaranteed renewable" Medicare supplement policy shall not:

(a) Provide for termination of coverage of a spouse solely because of the occurrence of an event specified for termination of coverage of the insured, other than the nonpayment of premium; or

(b) Be cancelled or nonrenewed by the insurer solely on the grounds of deterioration of health.

(5) (a) Except as authorized by the Commissioner of this state, an issuer shall neither cancel nor nonrenew a Medicare supplement policy or certificate for any reason other than nonpayment of premium or material misrepresentation.

(b) If a group Medicare supplement insurance policy is terminated by the group policyholder and not replaced as provided in Paragraph (5)(d), the issuer shall offer certificateholders an individual Medicare supplement policy. The issuer shall offer the certificateholder at least the following choices:

(1) An individual Medicare supplement policy currently offered by the issuer having comparable benefits to those contained in the terminated group Medicare supplement policy; and

(2) An individual Medicare supplement policy which provides only such benefits as are required to meet the minimum standards as defined in Section 8B of this regulation.

(c) If membership in a group is terminated, the issuer shall:

(1) Offer the certificateholder the conversion opportunities as are described in Subparagraph (b); or

(2) At the option of the group policyholder, offer the certificateholder continuation of coverage under the group policy.

(d) If a group Medicare supplement policy is replaced by another group Medicare supplement policy purchased by the same policyholder, the issuer of the replacement policy shall offer coverage to all persons covered under the old group policy on its date of termination. Coverage under the new group policy shall not result in any exclusion for preexisting conditions that would have been covered under the group policy being replaced.

(6) Termination of a Medicare supplement policy or certificate shall be without prejudice to any continuous loss which commenced while the policy was in force, but the extension of benefits beyond the period during which the policy was in force may be predicated upon the continuous total disability of the insured, limited to the duration of the policy benefit period, if any, or to payment of the maximum benefits.

B. Minimum Benefit Standards.

(1) Coverage of Part A Medicare eligible expenses for hospitalization to the extent not covered by Medicare from the 61st day through the 90th day in any Medicare benefit period;

(2) Coverage for either all or none of the Medicare Part A inpatient hospital deductible amount;

(3) Coverage of Part A Medicare eligible expenses incurred as daily hospital charges during use of Medicare's lifetime hospital inpatient reserve days;

(4) Upon exhaustion of all Medicare hospital inpatient coverage including the lifetime reserve days, coverage of ninety percent (90%) of all Medicare Part A eligible expenses for hospitalization not covered by Medicare subject to a lifetime maximum benefit of an additional 365 days;

(5) Coverage under Medicare Part A for the reasonable cost of the first three (3) pints of blood (or equivalent quantities of packed red blood cells, as defined under federal regulations) unless replaced in accordance with federal regulations or already paid for under Part B;

(6) Coverage for the coinsurance amount of Medicare eligible expenses under Part B regardless of hospital confinement, subject to a maximum calendar year out-of-pocket amount equal to the Medicare Part B deductible [$100];

(7) Effective January 1, 1990, coverage under Medicare Part B for the reasonable cost of the first three (3) pints of blood (or equivalent quantities of packed red blood cells, as defined under federal regulations), unless replaced in accordance with federal regulations or already paid for under Part A, subject to the Medicare deductible amount.

(8) Cancer Screening every other year for both men and women as recommended by the U.S. Department of Health and Human Services, Office of Disease Prevention and Health Promotion, except that nothing in this Section shall contravene Section 7.A of this regulation.

(9) Annual influenza immunizations.

 

Section 8. Benefit Standards for Policies or Certificates Issued or delivered on or after January 1, 1992.

 

The following standards are applicable to all Medicare supplement policies of certificates delivered or issued for delivery in this State on or after January 1, 1992. No policy or certificate may be advertised, solicited, delivered or issued for delivery in this State as a Medicare supplement policy or certificate unless it complies with these benefit standards.

A. General Standards. The following standards apply to Medicare supplement policies and certificates and are in addition to all other requirements of this regulation.

(1) A Medicare supplement policy or certificate shall not exclude or limit benefits for losses incurred more than six (6) months from the effective date of coverage because it involved a preexisting condition. The policy or certificate may not define a preexisting condition more restrictively than a condition for which medical advice was given or treatment was recommended by or received from a physician within six (6) months before the effective date of coverage.

(2) A Medicare supplement policy or certificate shall not indemnify against losses resulting from sickness on a different basis than losses resulting from accident.

(3) A Medicare supplement policy or certificate shall provide that benefits designed to cover cost sharing amounts under Medicare will be changed automatically to coincide with any changes in the applicable Medicare deductible amount and co-payment percentage factors. Premiums may be modified to correspond with such changes.

(4) No Medicare supplement policy or certificate shall provide for termination of coverage of a spouse because of the occurrence of an event specified for termination of coverages of the insured, other than the nonpayment of premium.

(5) Each Medicare supplement policy shall be guaranteed renewable and

(a) The issuer shall not cancel or nonrenew the policy solely on the ground of health status of the individual; and

(b) The issuer shall not cancel or nonrenew the policy for any reason other than nonpayment of premium or materials misrepresentation.

(c) If the Medicare supplement policy is terminated by the group policyholder and is not replaced as provided under Section 8A(5)(e), the issuer shall offer certificate- holders an individual Medicare supplement policy which (at the option of the certificate holder):

(i) Provides for continuation of the benefits contained in the group policy; or

(ii) Provides for such benefits that otherwise meet the requirements of this subsection.

(d) If an individual is a certificateholder in a group Medicare supplement policy and the individual terminates membership in the group, the issuer shall:

(i) Offer the certificateholder the conversion opportunity described in Section 8A(5)(c); or

(ii) At the option of the group policyholder, offer the certificate-holder continuation of coverage under the group policy.

(e) If a group Medicare supplement policy is replaced by another group Medicare supplement policy purchased by the same policyholder, the issuer of the replacement policy shall offer coverage to all persons covered under the old group policy on its date of termination. Coverage under the new policy shall not result in any exclusion for preexisting conditions that would have been covered under the group policy being replaced.

(6) Termination of a Medicare supplement policy or certificate shall be without prejudice to any continuous loss which commenced while the policy was in force, but the extension of benefits beyond the period during which the policy was in force may be conditioned upon the continuos total disability of the insured, limited to the duration of the policy benefit period, if any, or payment of the maximum benefits.

(7) (a) A Medicare supplement policy or certificate shall provide that benefits and premiums under the policy or certificate shall be suspended at the request of the policyholder or certificateholder for the period (not to exceed twenty-four (24) months) in which the policyholder or certificateholder has applied for and is determined to be entitled to medical assistance under Title XIX of the Social Security Act, but only if the policyholder or certificateholder notifies the issuer of such policy or certificate within ninety (90) days after the date the individual becomes entitled to such assistance. Upon receipt of timely notice, the issuer shall return to the policyholder or certificateholder that portion of the premium attributable to the period of Medicaid eligibility, subject to adjustment for paid claims.

(b) If such suspension occurs and if the policyholder or certificateholder loses entitlement to such medical assistance, such policy or certificate shall be automatically reinstituted (effective as of the date of termination of such entitlement) as of the termination of such entitlement, if the policyholder or certificate holder provides notice of loss of such entitlement within ninety (90) days after the date of such loss and pays the premium attributable to the period, effective as of the date of termination of such entitlement.

(c) Reinstitution of such coverages:

(i) Shall not provide for any waiting period with respect to treatment of preexisting conditions;

(ii) Shall provide for coverage which is substantially equivalent to coverage in effect before the date of such suspension; and

(iii) Shall provide for classification of premiums on terms as favorable to the policyholder or certificateholder as the premium classification terms that would have applied to the policyholder or certificateholder had the coverage not been suspended.

B. Standards for Basic ("Core") Benefits Common to All Benefit Plans.

Every issuer shall make available a policy or certificate including only the following basic "core" package of benefits to each prospective insured. An issuer may make available to prospective insureds any of the other Medicare Supplement Insurance Benefit Plans in addition to the basic "core" package, but not in lieu of it:

(1) Coverage of Part A Medicare Eligible Expenses for hospitalization to the extent not covered by Medicare from the 61st day through the 90th day in any Medicare benefit period;

(2) Coverage of Part A Medicare Eligible Expenses incurred for hospitalization to the extent not covered by Medicare for each Medicare lifetime inpatient reserve day used;

(3) Upon exhaustion of the Medicare hospital inpatient coverage including the lifetime reserve days, coverage of the Medicare Part A eligible expenses for hospitalization paid at the Diagnostic Related Group (DRG) day outlier per diem or other appropriate standard of payment, subject to a lifetime maximum benefit of an additional 365 days. The provider must accept the issuer's payment as payment in full and may not bill the insured for any balance;

(4) Coverage under Medicare Parts A and B for the reasonable cost of the first three (3) pints of blood (or equivalent quantities of packaged red blood cells as defined under federal regulations) unless replaced in accordance with federal regulations.

(5) Coverage for the coinsurance amount (under a prospective payment system) of Medicare Eligible Expenses under Part B regardless of hospital confinement, subject to the Medicare Part B deductible.

C. Standards for Additional Benefits. The following additional benefits shall be included in Medicare Supplement Benefit Plans "B" through "J" only as provided by Section 9 of this Regulation.

(1) Medicare Part A Deductible: Coverage for all of the Medicare Part A inpatient hospital deductible amount per benefit period.

(2) Skilled Nursing Facility Care: Coverage for the actual billed charges up to the coinsurance amount from the 21st day through the 100th day in a Medicare benefit period for post-hospital skilled nursing facility care eligible under Medicare Part A.

(3) Medicare Part B Deductible: Coverage for all of the Medicare Part B deductible amount per calendar year regardless of hospital confinement.

(4) Eighty Percent (80%) of the Medicare Part B Excess Charges: Coverage for eighty percent (80%) of the difference between the actual Medicare Part B charge as billed, not to exceed any charge limitation established by the Medicare program or state law, and the Medicare-approved Part B charge.

(5) One Hundred Percent (100%) of the Medicare Part B Excess Charges: Coverage for all of the difference between the actual Medicare Part B charge as billed, not to exceed any charge limitation established by the Medicare program or state law, and the Medicare-approved Part B charge.

(65) Basic Outpatient Prescription Drug Benefit: Coverage for fifty percent (50%) of outpatient prescription drug charges, after a two hundred fifty dollar ($250) calendar year deductible, to a maximum of one thousand two hundred fifty dollars ($1,250) in benefits received by the insured per calendar year, to the extent not covered by Medicare.

(76) Extended Outpatient Prescription Drug Benefit: Coverage for fifty percent (50%) of outpatient prescription drug charges, after a two hundred fifty dollar ($250) calendar year deductible to a maximum of three thousand dollars ($3,000) in benefits received by the insured per calendar year, to the extent no coverage by Medicare.

(87) Medically Necessary Emergency Care in a Foreign Country: Coverage to the extent not covered by Medicare for eighty percent (80%) of the billed charges for Medicare-eligible expenses for medically necessary emergency hospital, physician and medical care received in a foreign country, which care would have been covered by Medicare if provided in the United States and which care began during the first sixty (60) consecutive days of each trip outside the United States, subject to a calendar year deductible of two hundred fifty dollars ($250), and a lifetime maximum benefit of fifty thousand dollars ($50,000). For purposes of this benefit, "emergency care" shall mean care needed immediately because of an injury or an illness of sudden and unexpected onset.

(98) Preventive Medical Care Benefit: Coverage for the following preventive health services:

(a) An annual clinical preventive medical history and physical examination that may include tests and services from subsection (b) and patient education to address preventive health care measures.

(b) Any one or a combination of the following preventive screening tests or preventive services, the frequency of which is considered medically appropriate.

(1) Fecal occult blood test and/or digital rectal examination, or both;

 

(2) Mammogram;

(3) Dipstick urinalysis for hematuria, bacturiuria and proteinuria;

(4) Pure tone (air only) hearing screening test, administered by a physician;

(5) Serum cholesterol screening (every five (5) years);

(6) Thyroid function test;

(7) Diabetes screening.

(c) Influenza vaccine administered at any appropriate time during the year and Tetanus and Diphtheria booster (every ten (10) years).

(d) Any other tests or preventive measures determined appropriate by the attending physician.

 

Reimbursement shall be for the actual charges up to one hundred (100) percent of the Medicare-approved amount for each service, as if Medicare were to cover the service as identified in American Medical Association Current Procedural Terminology (AMA CPT) codes, to a maximum of one hundred twenty dollars ($120) annually under this benefit. This benefit shall not include payment for any procedure covered by Medicare.

(109) At-Home Recovery Benefit: Coverage for services to provide short term, at-home assistance with activities of daily living for those recovering from an illness, injury or surgery.

(a) For purposes of this benefit, the following definitions shall apply:

(i) "Activities of daily living" include, but are not limited to bathing, dressing, personal hygiene, transferring, eating, ambulating, assistance with drugs that are normally self-administered, and changing bandages or other dressings.

(ii) "Care provider" means a duly qualified or licensed home health aide or homemaker, personal care aide or nurse provided through a licensed home health care agency or referred by a licensed referral agency or licensed nurses registry.

(iii) "Home" shall mean any place used by the insured as a place of residence, provided that such place would qualify as a residence for home health care services covered by Medicare. A hospital or skilled nursing facility shall not be considered the insured's place of residence.

(iv) "At-home recovery visit" means the period of a visit required to provide at home recovery care, without limit on the duration of the visit, except each consecutive 4 hours in a 24-hour period of services provided by a care provider is one visit.

(b) Coverage Requirements and Limitations

(i) At-home recovery services provided must be primarily services which assist in activities of daily living.

(ii) The insured's attending physician must certify that the specific type and frequency of at-home recovery services are necessary because of a conditioner for which a home care plan of treatment was approved by Medicare.

(iii) Coverage is limited to:

(I) No more than the number and type of at-home recovery visits certified as necessary by the insured's attending physician. The total number of at-home recovery visits shall not exceed the number of Medicare approved home health care visits under a Medicare approved Home Care Plan of Treatment.

(II) The actual charges for each visit up to a maximum reimbursement of forty dollars ($40) per visit.

(III) One thousand six hundred dollars ($1,600) per calendar year.

(IV) Seven (7) visits in any one week.

(V) Care furnished on a visiting basis in the insured's home.

(VI) Services provided by a care provider as defined in this section.

(VII) At-home recovery visits while the insured is covered under the policy or certificate and not otherwise excluded.

(VIII) At-home recovery visits received during the period the insured is receiving Medicare approved home care services or no more than eight (8) weeks after the service date of the last Medicare approved home health care visit.

(c) Coverage is excluded for:

(i) Home care visits paid for Medicare or other government programs; and

(ii) Care provided by family members, unpaid volunteers or providers who are not care providers.

(110) New or Innovative Benefits: An issuer may, with the prior approval of the Commissioner, offer policies or certificates with new or innovative benefits in addition to the benefits provided in a policy or certificate that otherwise complies with the applicable standards. The new or innovative benefits may include benefits that are appropriate to Medicare supplement insurance, new or innovative, not otherwise available, cost-effective, and offered in a manner which is consistent with the goal of simplification of Medicare supplement policies.

 

Section 9. Standard Medicare Supplement Benefit Plans

A. An issuer shall make available to each prospective policyholder and certificateholder a policy form or certificate form containing only the basic "core" benefits, as defined in Section 8B of this regulation.

B. No groups, packages or combinations of Medicare supplement benefits other than those listed in this section shall be offered for sale in this state, except as may be permitted in Section 8B(10) and in Section 10 of this regulation.

C. Benefit plans shall be uniform in structure, language, designation and format to the standard benefit plans "A" through "J" listed in this subsection and conform to the definitions in Section 4 of this regulation. Each benefit shall be structured in accordance with the format provided in Sections 8B and 8C and list of the benefits in the order shown in this subsection. For purposes of this section, "structure, language and format" means style, arrangement and overall content of a benefit.

D. An issuer may use, in addition to the benefit plan designations required in subsection C, other designations to the extent permitted by law.

E. Make-up Benefit Plans:

(1) Standardized Medicare supplement benefit plan "A" shall be limited to the basic ("core") benefits common to all benefit plans, as defined in Section 8B of this regulation.

(2) Standardized Medicare supplement benefit plan "B" shall include only the following: the core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible as defined in Section 8C(1).

(3) Standardized Medicare supplement benefit plan "C" shall include only the following: The core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, Medicare Part B deductible and medically necessary emergency care in a foreign country as defined in Sections 8C(1), (2). (3) and (8) respectively.

(34) Standardized Medicare supplement benefit plan "D" shall include only the following: the core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, medically necessary emergency care in a foreign country and the at-home recovery benefit as defined in Section 8C(1), (2), (87) and (109) respectively.

(45) Standardized Medicare supplement benefit plan "E" shall include only the following: the core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, medically necessary emergency care in a foreign country and preventive medical Care as defined in Sections 8C(1), (2), (87) and (98) respectively.

(6) Standardized Medicare supplement benefit plan "F" shall include only the following: Tthe core benefit as described in Section 8B of this regulation , plus the Medicare Part A deductible, the skilled nursing facility care, the Part B deductible, one hundred (100%) of the Medicare Part B excess charges, and the medically necessary emergency care in a foreign country as defined in Sections 8C (1), (2), (3), (5) and (8) respectively.

(7) Standardized Medicare supplement benefit high deductible plan "F" shall include only the following: 100% of covered expenses following the payment of the annual high deductible plan "F" deductible. The covered expenses include the core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, the Medicare Part B deductible, one hundred percent (100%) of the Medicare Part B excess charges, and medically necessary emergency care in a foreign country as defined in Sections 8 C(1), (2), (3), (5) and (8) respectively. The annual high deductible plan "F" deductible shall consist of out-of-pocket expenses, other than premiums, and shall be in addition to any other specific benefit deductibles. The annual high deductible plan "F" deductible shall be $1500 for 1998 and 1999, and shall be based on the calendar year. It shall be adjusted annually thereafter by the Secretary to reflect the change in the Consumer Price Index for all urban consumers for the twelve-month period ending with August of the preceding year, and rounded to the nearest multiple of $10.

(8) Standardized Medicare supplement benefit plan "G" shall include only the following: The core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, eighty percent (80%) of the Medicare Part B excess charges, medically necessary emergency care in a foreign country and the at-home recovery benefit as defined in Sections 8C(1), (2), (4), (8) and (10) respectively.

(9) Standardized Medicare supplement benefit plan "H" shall include only the following: the core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, basic prescription drug benefit and medically necessary emergency care in a foreign country as defined in Sections 8C(1), (2), (6), and (8) respectively.

(10) Standardized Medicare supplement benefit plan "I" shall consist of only the following: the core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, one hundred percent (100%) of the Medicare Part B excess charges, basic prescription drug benefit, medically necessary emergency care in a foreign country and at-home recovery benefit as defined in Sections 8C(1), (2), (5), (6), (8) and (10) respectively.

(11) Standardized Medicare supplement benefit plan "J" shall consist of only the following: the core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, Medicare Part B deductible, one hundred percent (100%) of the Medicare Part B excess charges, extended prescription drug benefit, medically necessary emergency care in a foreign country, preventive medical care and at-home recovery benefit as defined in Section 8C(1), (2), (3), (5), (7), (8), (9) and (10) respectively.

(12) Standardized Medicare supplement benefit high deductible plan "J" shall consist of only the following: 100% of covered expenses following the payment of the annual high deductible plan "J" deductible. The covered expenses include the core benefit as defined in Section 8B of this regulation, plus the Medicare Part A deductible, skilled nursing facility care, the Medicare Part B deductible, one hundred percent (100%) of the Medicare Part B excess charges, extended outpatient drug benefit, medically necessary emergency care in a foreign country, preventive medical care benefit and at-home recovery benefit as defined in Sections 8 C(1), (2), (3), (5), (7), (8), (9) and (10). respectively. The annual high deductible plan "J" deductible shall consist of out-of-pocket expenses, other than premiums, for services covered by the Medicare supplement plan "J" policy, and shall be in addition to any other specific benefit deductibles. The annual high deductible plan "J" deductible shall be $1500 for 1998 and 1999, and shall be based on the calendar year. It shall be adjusted annually thereafter by the Secretary to reflect the change in the Consumer Price Index for all urban consumers for the twelve-month period ending with August of the preceding year, and rounded to the nearest multiple of $10.

 

Section 10. Medicare Select Policies and Certificates:

A. (1) This section shall apply to Medicare Select policies and certificates, as defined in this section.

(2) No policy or certificate may be advertised as a Medicare Select policy or certificate unless it meets the requirements of this section.

B. For the purposes of this section:

(1) "Complaint" means any dissatisfaction expressed by an individual concerning a Medicare Select issuer or its network providers.

(2) "Grievance" means dissatisfaction expressed in writing by an individual insured under a Medicare Select policy or certificate with the administration, claims practices or provision of services concerning a Medicare Select issuer or its network providers.

(3) "Medicare Select issuer" means an issuer offering, or seeking to offer, a Medicare Select policy or certificate.

(4) "Medicare Select policy" or "Medicare Select certificate" mean respectively a Medicare supplement policy or certificate that contains restricted network provisions.

(5) "Network provider" means a provider of health care, or a group of providers of health care which has entered into a written agreement with the issuer to provide benefits insured under a Medicare Select policy.

(6) "Restricted network provision" means any provision which conditions the payment of benefits, in whole or in part, on the use of network providers.

(7) "Service area" means the geographic area approved by the Commissioner within which an issued is authorized to offer a Medicare Select policy.

C. The Commissioner may authorize an issuer to offer a Medicare Select policy or certificate, pursuant to his section and section 4358 of the Omnibus Budget Reconciliation Act (OBRA) of 1990 if the Commissioner finds that the issuer has satisfied all of the requirements of this regulation.

D. A Medicare Select issue shall not issue a Medicare Select policy or certificate in this State until its plan of operation has been approved by the Commissioner.

E. A Medicare Select issuer shall file a proposed plan of operation with the Commissioner in a format prescribed by the Commissioner. The plan of operation shall contain at least the following information:

(1) Evidence that all covered services that are subject to restricted network provisions are available and accessible through network providers, including a demonstration that:

(a) Services can be provided by network providers with reasonable promptness with respect to geographic location, hours of operation and after-hour care. The hours of operation and availability of after-hour care shall reflect usual practice in the local area. Geographic availability shall reflect the usual travel times within the community.

(b) The number of network providers in the service area is sufficient, with respect to current and expected policyholders, either:

(i) To deliver adequately all services that are subject to a restricted network provision; or

(ii) To make appropriate referrals.

(c) There are written agreements with network providers describing specific responsibilities.

(d) Emergency care is available twenty-four (24) hours per day and seven (7) days per week.

(e) In the case of covered services that are subject to a restricted network basis, there are written agreements with network providers prohibiting the providers from billing or otherwise seeking reimbursement from or recourse against any individual insured under a Medicare Select policy or certificate. This paragraph shall not apply to supplemental charges or coinsurance amounts as stated in the Medicare Select policy or certificate.

(2) A statement or may providing a clear description of the service area.

(3) A description of the grievance procedure to be utilized.

(4) A description of the quality assurance program, including:

(a) The formal organizational structure;

(b) The written criteria for selection, retention and removal of network providers; and

(c) The procedures for evaluating the quality of care provided by network providers, and the process to initiate corrective action when warranted.

(5) A list and description, by specialty, of the network providers.

(6) Copies of the written information proposed to be used by the issuer to comply with subsection I.

(7) Any other information requested by the Commissioner.

F. (1) A Medicare Select issuer shall file any proposed changes to the plan of operation, except for changes to the list of network providers with the Commissioner prior to implementing such changes. Such changes shall be considered approved by the Commissioner after thirty (30) days unless specifically disapproved.

(2) An updated list of network providers shall be filed with the Commissioner at least quarterly.

G. A Medicare Select policy or certificate shall not restrict payment for covered services provided by non-network providers if:

(1) The services are for symptoms requiring emergency care or are immediately required for an unforeseen illness, injury or a condition; and

(2) It is not reasonable to obtain such services through a network provider.

H. A Medicare Select policy or certificate shall provide payment for full coverage under the policy for covered services that are not available through network providers.

I. A Medicare Select issuer shall make a full and fair disclosure in writing of the provisions, restrictions, and limitations of the Medicare Select policy or certificate to each applicant. This disclosure shall include at least the following:

(1) An outline of coverage sufficient to permit the applicant to compare the coverage and premiums of the Medicare Select policy or certificate with:

(a) Other Medicare supplement policies or certificates offered by the issuer; and

(b) Other Medicare Select policies or certificates.

(2) A description (including address, phone number and hours of operation) of the network providers, including primary care physicians, specialty physicians, hospitals, and other providers.

(3) A description of the restricted network provisions, including payments for coinsurance and deductibles when providers other than network providers are utilized.

(4) A description of coverage for emergency and urgently needed care and other out of service area coverage.

(5) A description of limitations on referrals to restricted network providers and to other providers.

(6) A description of the policyholder's rights to purchase any other Medicare supplement policy or certificate otherwise offered by the issuer.

(7) A description of the Medicare Select issuer's quality assurance program and grievance procedure.

J. Prior to the sale of a Medicare Select policy or certificate, a Medicare Select issuer shall obtain from the applicant a signed and dated form stating that the applicant has received the information provided pursuant to Subsection I of this section and that the applicant understands the restrictions of the Medicare Select policy or certificate.

K. A Medicare Select issuer shall have and use procedures for hearing complaints and resolving written grievances from the subscribers. Such procedures shall be aimed at mutual agreement for settlement and may include arbitration procedures.

(1) The grievance procedure shall be described in the policy and certificates and in the outline of coverage.

(2) At the time the policy or certificate is issued, the issuer shall provide detailed information to the policyholder describing how a grievance may be registered with the issuer.

(3) Grievances shall be considered in a timely manner and shall be transmitted to appropriate decision-makers who have authority to fully investigate the issue and take corrective action.

(4) If a grievance is found to be valid, corrective action shall be taken promptly.

(5) All concerned parties shall be notified about the results of a grievance.

(6) The issuer shall report no later than each March 31st to the Commissioner regarding its grievance procedure. The report shall be in a format prescribed by the Commissioner and shall contain the number of grievances filed in the past year and a summary of the subject, nature and resolution of such grievances.

L. At the time of initial purchase, a Medicare Select issuer shall make available to each applicant for a Medicare Select policy or certificate the opportunity to purchase any Medicare supplement policy or certificate otherwise offered by the issuer.

M. (1) At the request of an individual insured under a Medicare Select policy or certificate, a Medicare Select issuer shall make available to the individual insured the opportunity to purchase a Medicare supplement policy or certificate offered by the issuer which has comparable or lesser benefits and which does not contain a restricted network provision. The issuer shall make the policies or certificates available without requiring evidence of insurability after the Medicare Select policy or certificate has been in force for six (6) months.

(2) For the purposes of this subsection, a Medicare supplement policy or certificate will be considered to have comparable or lesser benefits unless it contains one or more significant benefits not included in the Medicare Select policy or certificate being replaced. For the purposes of this paragraph, a significant benefit means coverage for the Medicare Part A deductible, coverage for prescription drugs, coverage for at-home recovery services or coverage for Part B excess charges.

N. Medicare Select policies and certificates shall provide for continuation of coverage in the event the Secretary of Health and Human Services determines that Medicare Select policies and certificates issued pursuant to this section should be discontinued due to either the failure of the Medicare Select Program to be reauthorized under law or its substantial amendment.

(1) Each Medicare Select issuer shall make available to each individual insured under a Medicare Select policy or certificate the opportunity to purchase any Medicare supplement policy or certificate offered by the issued which has comparable or lesser benefits and which does not contain a restricted network provision. The issuer shall make such policies and certificates available without requiring evidence of insurability.

(2) For the purposes of this subsection, a Medicare supplement policy or certificate will be considered to have comparable or lesser benefits unless it contains one or more significant benefits not included in the Medicare Select policy or certificate being replaced. For the purposes of this paragraph, a significant benefit means coverage for the Medicare Part A deductible, coverage for prescription drugs, coverage for at-home recovery services or coverages for Part B excess charges.

O. A Medicare Select issuer shall comply with reasonable requests for data made by state or federal agencies, including the United States Department of Health and Human Services, for the purpose of evaluating the Medicare Select Program.

 

Editor's Note: Section 10, Medicare Select Policies and Certificates, of this Regulation is effective October 6, 1995, pursuant to President Clinton's signing H.R. 483 on July 7, 1995, permitting Medicare Select policies to be offered in all fifty states, and the Delaware Insurance Commissioner's amending this regulation pursuant to 29 Del. C. 10013(b)(5).

 

Section 11. Open Enrollment

A. An issuer shall not deny or condition the issuance or effectiveness of any Medicare supplement policy or certificate available for sale in this state, nor discriminate in the pricing of such a policy or certificate because of the health status, claims experience, receipt of health care, or medical condition of an applicant in the case of an application for a policy or certificate that is submitted prior to or during the six (6) month period beginning with the first day of the first month in which an individual is both 65 years of age or older and is enrolled for benefits under Medicare Part B. Each Medicare supplement policy and certificate currently available from an issuer shall be made available to all applicants who qualify under this subsection without regard to age.

B. (1) If an applicant qualifies under Subsection A and submits an application during the time period referenced in Subsection A and, as of the date of the application, has had a continuous period of creditable coverage of at least six months, the issuer shall not exclude benefits based on a preexisting condition.

(2) If the applicant qualifies under Subsection A and submits an application during the time period referenced in Subsection A and, as of the date of application, has had a continuous period of creditable coverage that is less than six months, the issuer shall reduce the period of any preexisting condition exclusion by the aggregate of the period of creditable coverage applicable to the applicant as of the enrollment date. The Secretary shall specify the manner of the reduction under this subsection.

CB. Except as provided in Section 223, subsection A shall not be construed as preventing the exclusion of benefits under a policy, during the first six (6) months, based on a preexisting condition for which the policyholder or certificateholder received treatment or was otherwise diagnosed during the six (6) months before the coverage became effective.

 

Section 12. Guaranteed Issue for Eligible Persons

A. Guaranteed Issue

(1) Eligible persons are those individuals described in Subsection B who apply to enroll under the policy not later than sixty-three (63) days after the date of the termination of enrollment described in Subsection B, and who submit evidence of the date of termination or disenrollment with the application for a Medicare supplement policy.

(2) With respect to eligible persons, an issuer shall not deny or condition the issuance or effectiveness of a Medicare supplement policy described in Subsection C that is offered and is available for issuance to new enrollees by the issuer, shall not discriminate in the pricing of such a Medicare supplement policy because of health status, claims experience, receipt of health care, or medical condition, and shall not impose an exclusion of benefits based on a preexisting condition under such a Medicare supplement policy.

B. Eligible Persons

An eligible person is an individual described in any of the following paragraphs:

(1) The individual is enrolled under an employee welfare benefit plan that provides health benefits that supplement the benefits under Medicare; and the plan terminates, or the plan ceases to provide all such supplemental health benefits to the individual; or the individual is enrolled under an employee welfare benefit plan that is primary to Medicare and the plan terminates or the plan terminates or the plan ceases to provide all health benefits to the individual because the individual leaves the plan;

(2) The individual is enrolled with a Medicare+Choice organization under a Medicare+Choice plan under part C of Medicare, and any of the following circumstances apply:

(i) The organization's or plan's certification [under this part] has been terminated or the organizations has terminated or otherwise discontinued providing the plan in the area in which the individual resides;

(ii) The individual is no longer eligible to elect the plan because of a change in the individual's place of residence or other change in circumstances specified by the Secretary, but not including termination of the individual's enrollment on the basis described in Section 1851(g)(3)(B) of the federal Social Security Act (where the individual has not paid premiums on a timely basis or has engaged in disruptive behavior as specified in standards under Section 1856), or the plan is terminated for all individuals within a residence area;

(iii) The individual demonstrates, in accordance with guidelines established by the Secretary, that:

(I) The organization offering the plan substantially violated a material provision of the organization's contract under this part in relation to the individual, including the failure to provide an enrollee on a timely basis medically necessary care for which benefits are available under the plan or the failure to provide such covered care in accordance with applicable quality standards; or

(II) The organization, or agent or other entity acting on the organization's behalf, materially misrepresented the plan's provisions in marketing the plan to the individual; or

(iv) The individual meets such other exceptional conditions as the Secretary may provide."

(3) (a) The individual is enrolled with:

(i) An eligible organization under a contract under Section 1876 (Medicare risk or cost);

(ii) A similar organization operating under demonstration project authority, effective for periods before April 1, 1999;

(iii) An organization under an agreement under Section 1833(a)(1)(A) (health care prepayment plan); or

(iv) An organization under a Medicare Select policy; and

(b) The enrollment ceases under the same circumstances that would permit discontinuance of an individual's election of coverage under Section 12B(2).

(4) The individual is enrolled under a Medicare supplement policy and the enrollment ceases because:

(a) (i) Of the insolvency of the issuer or bankruptcy of the nonissuer organization; or

(ii) Of other involuntary termination of coverage or enrollment under the policy;

(b) The issuer of the policy substantially violated a material provision of the policy; or

(c) The issuer, or an agent or other entity acting on the issuer's behalf, materially misrepresented the policy's provisions in marketing the policy to the individual;

(5) (a) The individual was enrolled under a Medicare supplement policy and terminates enrollment and subsequently enrolls, for the first time, with any Medicare+Choice organization under a Medicare+Choice plan under part C of Medicare, any eligible organization under a contract under Section 1876 (Medicare risk or cost), any similar organization operating under demonstration project authority, an organization under an agreement under section 1833(a)(1)(A) (health care prepayment plan), or a Medicare Select policy; and

(b) The subsequent enrollment under subparagraph (a) is terminated by the enrollee during any period within the first twelve (12) months of such subsequent enrollment (during which the enrollee is permitted to terminate such subsequent enrollment under section 1851(e) of the federal Social Security Act); or

(6) The individual, upon first becoming enrolled in Medicare part B at age 65 or older, enrolls in a Medicare+Choice plan under Part C of Medicare, and disenrolls from the plan by not later than twelve (12) months after the effective date of enrollment.

C. Products to Which Eligible Persons are Entitled

The Medicare supplement policy to which eligible persons are entitled under:

(1) Section 12B(1), (2), (3) and (4) is a Medicare supplement policy which has a benefit package classified as Plan A, B, C, or F offered by any issuer.

(2) Section 12B(5) is the same Medicare supplement policy in which the individual was most recently previously enrolled, if available from the same issuer, or, if not so available, a policy described in Subsection C(1).

(3) Section 12B(6) shall include any Medicare supplement policy offered by any issuer.

D. Notification Provisions

(1) At the time of an event described in Subsection B of this section because of which an individual loses coverage or benefits due to the termination of a contract or agreement, policy, or plan, the organization that terminates the contract or agreement, the issuer terminating the policy, or the administrator of the plan being terminated, respectively, shall notify the individual of his or her rights under this section, and of the obligations of issuers of Medicare supplement policies under Subsection A. Such notice shall be communicated contemporaneously with the notification of termination.

(2) At the time of an event described in Subsection B of this section because of which an individual ceases enrollment under a contract or agreement, policy, or plan, the organization that offers the contract or agreement, regardless of the basis for the cessation of enrollment, the issuer offering the policy, or the administrator of the plan, respectively, shall notify the individual of his or her rights under this section, and of the obligations of issuers of Medicare supplement policies under Section 12A. Such notice shall be communicated within ten (10) working days of the issuer receiving notification of disenrollment.

 

Consumer Protections for the Eligible Persons of 1999.

(1) The eligible persons of 1999 are those persons who meet the definition of eligible persons set forth in Section 12 B on or about January 1, 1999, including those persons who were originally eligible for Medicare benefits due to disability.

(2) Notwithstanding any provision of this regulation to the contrary, issuers of Medicare supplement policies or certificates shall:

(a) File forms with the Department for standardized plans A, B, C and F described in Section 9 above for any such plans not on file with the Department as of the date of this amendment on or before October 61 , 1998;

(b) Offer such plans on a guaranteed issue basis to the eligible persons of 1999 in conformance with the provisions of subsections A. and B. of Section 12 above;

(c) Not discriminate in the pricing of any Medicare supplement policy offered to eligible persons of 1999 because of health status, claims experience, receipt of health care, or medical condition and shall mot impose an exclusion of benefits based on a pre-existing condition; and

(d) Give written notice of the availability of guaranteed issue plans A, B, C, and F to the eligible persons of 1999 to whom they solicit Medicare supplement policies.

(3) Issuers of Medicare supplement policies and certificates shall certify in writing that the plans filed in accordance with this section are identical with the exception of benefit package to Medicare supplement plans that such issuer currently has on file with the Department. Such issuers shall submit required filings such as outlines of coverage on or before November 1, 1999.

(4) Any provision of this regulation not in direct conflict the provisions of this subsection E shall remain in full force an effect.

 

Section 13. Standards for Claims Payment

A. An issuer shall comply with Section 1882(c)(3) of the Social Security Act (as enacted by Section 4081(b)(2)(C) of the Omnibus Budget Reconciliation Act of 1987 (OBRA), Pub. L. No. 100--203) by:

(1) Accepting a notice from a Medicare carrier on dually assigned claims submitted by participating physicians and suppliers as a claim for benefits in place of any other claim form otherwise required and making a payment determination on the basis of the information contained in that notice;

(2) Notifying the participating physician or supplier and the beneficiary of the payment determination;

(3) Paying the participating physician or supplier directly;

(4) Furnishing at the time of enrollment, each enrollee with a card listing the policy name, number, and a central mailing address to which notices from a Medicare carrier may be sent;

(5) Paying user fees for claim notices that are transmitted electronically or otherwise; and

(6) Providing to the Secretary of Health and Human Services, at least annually, a central mailing address to which all claims may be sent by Medicare carriers.

B. Compliance with the requirements set forth in Subsection A above shall be certified on the Medicare supplement insurance experience reporting form.

 

Section 143. Loss Ratio Standards and Refund or Credit of Premium

A. Loss Ratio Standards

(1) (a) A Medicare Supplement policy form or certificate form shall not be delivered or issued for delivery unless the policy form or certificate form can be expected, as estimated for the entire period for which rates are computed to provide coverage, to return to policyholders and certificateholders in the form of aggregate benefits (not including anticipated refunds or credits) provided under the policy form or certificate form:

(i) At least 75 percent of the aggregate amount of premiums earned in the case of group policies, or

(ii) At least 65 percent of the aggregate amount of premiums earned in the case of individual policies,

(b) Calculated on the basis of incurred claims experience or incurred health care expenses where coverage is provided by a health maintenance organization on a service rather than reimbursement basis and earned premiums for such period and in accordance with accepted actuarial principles and practices.

(2) All filings of rates and rating schedules shall demonstrate that expected claims in relation to premiums comply with the requirements of this section when combined with actual experience to date. Filings of rate revisions shall also demonstrate that the anticipated loss ratio over the entire future period for which the revised rates are computed to provide coverage can be expected to meet the appropriate loss ratio standards.

(3) For purposes of applying subsection A(1) of this Section and Subsection C(3) of Section 14 only, policies issued as a result of solicitations of individuals through the mails or by mass media advertising (including both print and broadcast advertising) shall be deemed to be individual policies.

B. Refund or Credit Calculation

(1) An issuer shall collect and file with the Commissioner by May 31 of each year the data contained in the applicable reporting form contained in Appendix A for each type in a standard Medicare supplement benefit plan.

(2) If on the basis of the experience as reported the benchmark ratio since inception (ratio 1) exceeds the adjusted experience ratio since inception (ratio 3), then a refund or credit calculation is required. The refund calculation shall be done on a statewide basis for each type in a standard Medicare supplement benefit plan. For purposes of the refund or credit calculation, experience on policies issued within the reporting year shall be excluded.

(3) For the purposes of this section, policies or certificates issued prior to January 1, 1992, the issuer shall make the refund or credit calculation separately for all individual policies (including all group policies subject to an individual loss ratio standard when issued) combined and all other group policies combined for experience after the (effective date of this amendment). The first such report shall be due by May 31, 1998.

(4) A refund or credit shall be made only when the benchmark loss ratio exceeds the adjusted experience loss ratio and the amount to be refunded or credited exceeds a de minimis level. The refund shall include interest from the end of the calendar year to the date of the refund or credit at a rate specified by the Secretary of Health and Human Services, but in no event shall it be less than the average rate of interest for 13-week Treasury notes. A refund or credit against premiums due shall be made by September 30 following the experience year upon which the refund or credit is based

C. Annual Filing of Premium Rates

An issuer of Medicare supplement policies and certificates issued before or after the effective date of January 1, 1992 in this State shall file annually its rates, rating schedule and supporting documentation including ratios of incurred losses to earned premiums by policy duration for approval by the Commissioner in accordance with the filing requirements and procedures prescribed by the Commissioner. The supporting documentation shall also demonstrate in accordance with actuarial standards of practice using reasonable assumptions that the appropriate loss ratio standards can be expected to be met over the entire period for which rates are computed. Such demonstration shall exclude active life reserves. An expected third-year loss ratio which is greater than or equal to the applicable percentage shall be demonstrated for policies or certificates in force less than three (3) years. As soon as practicable, but prior to the effective date of enhancements in Medicare benefits, every issuer of Medicare supplement policies or Medicare supplement policies or certificates in this State shall file with the Commissioner, in accordance with the applicable filing procedures of this State:

(1) (a) Appropriate premium adjustments necessary to produce loss ratios as anticipated for the current premium for the applicable policies or contracts. The supporting documents as necessary to justify the adjustment shall accompany the filing.

(b) An issuer shall make such premium adjustments as are necessary to produce an expected loss ratio under the policy or certificate to conform with minimum loss ratio standards for Medicare supplement policies and which are expected to result in a loss ratio at least as great as that originally anticipated in the rates used to produce current premiums by the issuer for the Medicare supplement insurance policies or certificates. No premium adjustment which would modify the loss ratio experience under the policy other than the adjustments described herein should be made with respect to a policy at any time other than upon its renewal date or anniversary date.

(c) If an issuer fails to make premium adjustments acceptable to the Commissioner, the Commissioner may order premium adjustments, refunds, or premium credits deemed necessary to achieve the loss ratio required by this section.

(2) Any appropriate riders, endorsements or policy forms needed to accomplish the Medicare supplement policy or certificate modifications necessary to eliminate benefit duplications with Medicare. The riders, endorsements or policy forms shall provide a clear description of the Medicare supplement benefits provided by the policy or certificate.

D. Public Hearings

The Commissioner may conduct a public hearing to gather information concerning a request by an issuer for an increase in a rate for a policy form or certificate form issued before or after the effective date of this Regulation if the experience of the form for the previous reporting period is not in compliance with the applicable loss ratio standard. The determination of compliance is made without consideration of any refund or credit for such reporting period. Public notice of the hearing shall be furnished in a manner deemed appropriate by the Commissioner.

 

Section 154. Filing and Approval of Policies and Certificates and Premium Rates

A. An issuer shall not deliver or issue for delivery a policy or certificate to a resident of this State unless the policy form or certificate form has been filed with and approved by the Commissioner in accordance with filing requirements and procedures prescribed by the Commissioner.

B. An issuer shall not use or change premium rates for a Medicare supplement policy or certificate unless the rates, rating schedule and supporting documentation have been filed with and approved by the Commissioner in accordance with the filing requirements and procedures prescribed by the Commissioner.

C. (1) Except as provided in paragraph (2) of this subsection, an insurer shall not file for approval more than one form of a policy or certificate of each type for each standard Medicare supplement benefit plan.

(2) An issuer may offer, with the approval of the Commissioner, up to four additional policy forms or certificate forms of the same type for the same standard Medicare supplement benefit plan, one for each of the following cases.

(a) The inclusion of new or innovative benefits;

(b) The addition of either direct response or agent marketing methods;

(c) The addition of either guaranteed issue or underwritten coverage;

(d) The offering of coverage to individuals eligible for Medicare by reason of disability.

(3) For the purposes of this action, a "type" means an individual policy, a group policy, an individual Medicare Select policy, or a group Medicare Select policy.

D. (1) Except as provided in paragraph (1)(a), an issuer shall continue to make available for purchase any policy form or certificate form issued after the effective date of this Regulation that has been approved by the Commissioner. A policy form or certificate form shall not be considered to be available for purchase unless the issuer has actively offered it for sale in the previous twelve months.

(a) An issuer may discontinue the availability of a policy form or certificate form if the issuer provides to the Commissioner in writing its decision at least 30 days prior to discontinuing the availability of the form of the policy or certificate. After receipt of the notice by the Commissioner, the issuer shall no longer offer for sale the policy form or certificate form in this State.

(b) An issuer that discontinues the availability of a policy form or certificate form pursuant to subparagraph (a) shall not file for approval a new policy form or certificate form of the same type for the same standard Medicare supplement benefit plan as the discontinued form for a period of five (5) years after the issuer provides notice to the Commissioner of the discontinuance. The period of discontinuance may be reduced if the Commissioner determined that a shorter period is appropriate.

(2) The sale or other transfer of Medicare supplement business to another issuer shall be considered a discontinuance for the purposes of this subsection.

(3) A change in the rating structure or methodology shall be considered a discontinuance under paragraph (1) unless the issuer complies with the following requirements:

(a) The issuer provides an actuarial memorandum, in a form and manner prescribed by the Commissioner, describing the manner in which the revised rating methodology and resultant rates differ from the existing rating methodology and existing rates.

(b) The issuer does not subsequently put into effect a change of rates or rating factors that would cause the percentage differential between the discontinued and subsequent rates as described in the actuarial memorandum to change. The Commissioner may approve a change to the differential which is in the public interest.

E. (1) Except as provided in paragraph (2), the experience of all policy forms or certificate forms of the same type in a standard Medicare supplement benefit plan shall be combined for purposes of the refund or credit calculation prescribed in Section 13 hereof.

(2) Forms assumed under an assumption reinsurance agreement shall not be combined with the experience of other forms for purposes of the refunds or credit calculation.

 

Section 165. Permitted Compensation Arrangements

A. An issuer or other entity may provide commission or other compensation to an agent or other representative for the sale of a Medicare supplement policy or certificate only if the first year commission or other first year compensation is no more than two hundred percent (200%) of the commission or other compensation paid for selling or servicing the policy or certificate in the second year or period.

B. The commission or other compensation provided in subsequent (renewal) years must be the same as that provided in the second year or period and must be provided for no fewer than five (5) renewal years.

C. No issuer or other entity shall provide compensation to its agents or other producers and no agent or producer shall receive compensation greater than the renewal compensation payable by the replacing issuer or renewal policies or certificates if an existing policy or certificate is replaced.

D. For purposes of this section, "compensation" includes pecuniary or non-pecuniary remuneration of any kind relating to the sale or renewal of the policy or certificate including but not limited to bonuses, gifts, prizes, awards and finders fees.

 

Section 176. Required Disclosure Provisions

A. General Rules.

(1) Medicare supplement policies and certificates shall include a renewal or continuation provision. The language or specifications of the provision must be consistent with the type of contract issued. Such provision shall be appropriately captioned and shall appear on the first page of the policy and shall include any reservation by the issuer of the right to change premiums and any automatic renewal premium increases based on the policyholder's age.

(2) Except for riders or endorsements by which the issuer effectuates a request made in writing by the insured, exercises a specifically reserved right under a Medicare supplement policy, or is required to reduce or eliminate benefits to avoid duplication of Medicare benefits, all riders or endorsements added to a Medicare supplement policy after date of issue or at reinstatement or renewal which reduce or eliminate benefits or coverage in the policy shall require a signed acceptance by the insured. After the date of the policy or certificate issue, any rider or endorsement which increases benefits or coverage with a concomitant increase in premium during the policy term shall be agreed to in writing signed by the insured, unless the benefits are required by the minimum standards for Medicare supplement policies, or if the increased benefits or coverage is required by law. Where a separate additional premium is charged for benefits provided in connection with riders or endorsements, the premium charge shall be set forth in the policy.

(3) Medicare supplement policies or certificates shall not provide for the payment of benefits based on standards described as "usual and customary," "reasonable and customary" or words of similar import.

(4) If a Medicare supplement policy or certificate contains any limitations with respect to preexisting conditions, such limitations shall appear as a separate paragraph of the policy and be labeled as "Preexisting Condition Limitations."

(5) Medicare supplement policies and certificates shall have a notice prominently printed on the first page of the policy or certificate or attached thereto stating in substance that the policyholder or certificateholder shall have the right to return the policy or certificate within thirty (30) days of its delivery and to have the premium refunded if, after examination of the policy or certificate, the insured person is not satisfied for any reason.

(6) (a) Issuers of accident and sickness policies or certificates which provide hospital or medical expense coverage on an expense incurred or indemnity basis to a person(s) eligible for Medicare shall provide to those applicants a "Guide to Health Insurance for People with Medicare" in the form developed jointly by the National Association of Insurance Commissioners and the Health Care Financing Administration and in a type size no smaller than 12 point type. Delivery of the Buyer's Guide shall be made whether or not such policies or certificates are advertised, solicited or issued as Medicare supplement policies or certificates as defined in this regulation. Except in the case of direct response issuers, delivery of the Buyer's Guide shall be made to me applicant at the time of application and acknowledgmentacknowledgement of receipt of the Buyer's Guide shall be obtained by the issuer. Direct response issuers shall deliver the Buyer's Guide to the applicant upon request but not later than at the time the policy is delivered.

(b) For purposes of this section, "form" mans the language, format, type size, type proportional spacing, bold character, and line spacing.

B. Notice Requirements.

(1) As soon as practicable, but no later than thirty (30) days prior to the annual effective date of any Medicare benefit changes, an issuer shall notify its policyholders and certificateholders of modifications it has made to Medicare supplement insurance policies or certificates in a format acceptable to the Commissioner. The notice shall:

(a) Include a description of revisions to the Medicare program and a description of each modification made to the coverage provided under the Medicare supplement policy or certificate, and

(b) Inform each policyholder or certificateholder as to when any premium adjustment is to be made due to changes in Medicare.

(2) The notice of benefit modifications and any premium adjustments shall be in outline form and in clear and simple terms so as to facilitate comprehension.

(3) Such notices shall not contain or be accompanied by any solicitation.

C. Outline of Coverage Requirements for Medicare Supplement Policies.

(1) Issuers shall provide an outline of coverage to all applicants at the time application is presented to the prospective applicant and, except for direct response policies, shall obtain an acknowledgment of receipt of the outline from the applicant; and

(2) If an outline of coverage is provided at the time of application and the Medicare supplement policy or certificate is issued on a basis which would require revision of the outline, a substitute outline of coverage properly describing the policy or certificate shall accompany such policy or certificate when it is delivered and contain the following statement, in no less than twelve (12) point type, immediately above the company name:

 

"NOTICE: Read this outline of coverage carefully. It is not identical to the outline of coverage provided upon application and the coverage originally applied for has not been issued."

(3) The outline of coverage provided to applicants pursuant to this Section consists of four parts: a cover page, premium information disclosure pages, and charts displaying the features of each benefit plan offered by the issuer. The outline of coverage shall be in the language and format prescribed below in no less than twelve (12) point type. All plans A, B, C, D, E, F, G, H, I and JD, E, I, and J shall be shown on the cover page, and the plan(s) that are offered by this issuer shall be prominently identified. Premium information for plans that are offered shall be shown on the cover page or immediately following the cover page and shall be prominently displayed. The premium and mode shall be stated for all plans that are offered to the prospective applicant. All possible premiums for the prospective applicant shall be illustrated.

(4) The following items shall be included in the outline of coverage in the order prescribed below.

 

[COMPANY NAME]

Outline of Medicare Supplement Coverage Cover Page

Benefit Plan(s) _____ _____ [insert letters of plan(s) being offered]

 

Medicare supplement insurance can be sold in onlysix ten standard plans, plus two high deductible plans. This chart shows the benefits included in each plan. Every company must make available Plan "A". Some plans may not be available in your state.

 

BASIC BENEFITS: Included in All Plans.

Hospitalization: Part A coinsurance plus coverage for 365 additional days after Medicare benefits end.

Medical Expenses: Part B coinsurance (20% of Medicare-approved expenses), or, under a prospective payment system, applicable copayments.

Blood: First three pints of blood each year.

 

 

A

B

C

D

E

F F4

G

H

I

J J4

Basic Benefits

Basic Benefits

Basic Benefits

Basic Benefits

Basic Benefits

Basic Benefits

Basic Benefits

Basic Benefits

Basic Benefits

Basic Benefits

 

 

Skilled Nursing

Co-Insuran ce

Skilled Nursing Co-Insuran ce

Skilled Nursing Co-Insurance

Skilled Nursing Co-Insurance

Skilled Nursing Co-Insurance

Skilled Nursing Co-Insurance

Skilled Nursing Co-Insurance

Skilled Nursing Co-Insurance

 

Part A Deductibl e

Part A Deducti ble

Part A Deducti ble

Part A Deductible

Part A Deductible

Part A Deductible

Part A Deductibl e

Part A Deductible

Part A Deductible

 

 

Part B Deducti ble

 

 

Part B Deductible

 

 

 

Part B Deductible

 

 

 

 

 

Part B Excess (100%)

Part B Excess (80%)

 

Part B Excess (100%)

Part B Excess (100%)

 

 

Foreign Travel Emerge ncy

Foreign Travel Emerge ncy

Foreign Travel Emergency

Foreign Travel Emergency

Foreign Travel Emergency

Foreign Travel Emergenc y

Foreign Travel Emergency

Foreign Travel Emergency

 

 

 

At-Home Recover y

 

 

At-Home Recovery

 

At-Home Recovery

At-Home Recovery

 

 

 

 

 

 

 

Basic Drugs ($1,250 Limit)

Basic Drugs ($1,250 Limit)

Extended Drugs

($3,000 Limit)

 

 

 

 

Preventive Care

 

 

 

 

Preventive Care

 

PREMIUM INFORMATION [Boldface Type]

 

We [insert issuer's name] can only raise your premium if we raise the premium for all policies like yours in this State. [If the premium is based on the increasing age of the insured, include information specifying when premiums will change.]

 

DISCLOSURES [Boldface Type]

 

Use this outline to compare benefits and premiums among policies.

 

READ YOUR POLICY VERY CAREFULLY [Boldface Type]

 

This is only an outline, describing your policy's most important features. The policy is your insurance contract. You must read the policy itself to understand all of the rights and duties of both you and your insurance company.

 

RIGHT TO RETURN POLICY [Boldface Type]

 

If you find that you are not satisfied with your policy, you may return it to [insert issuer's address]. If you send the policy back to us within 30 days after your receive it, we will treat the policy as if it had never been issued and return all of your payments.

 

POLICY REPLACEMENT [Boldface Type]

 

If you are replacing another health insurance policy, do NOT cancel it until you have actually received your new policy and are sure you wan to keep it.

 

NOTICE [Boldface Type]

 

This policy may not fully cover all of your medical costs.

[for agents:]

Neither [insert company's name] nor its agents are connected with Medicare.

 

[for direct response:]

[insert company's name] is not connected with Medicare.

 

This outline of coverage does not give all the details of Medicare coverage. Contact your local Social Security Office or consult "The Medicare Handbook" for more details.

 

COMPLETE ANSWERS ARE VERY IMPORTANT [Boldface Type]

 

When you fill out the application for the new policy, be sure to answer truthfully and completely all questions about your medical and health history. The company may cancel your policy and refuse to pay any claims if you leave out or falsify important medical information. [If the policy or certificate is guaranteed issue, this paragraph need not appear.]

 

Review the application carefully before you sign it. Be certain that all information has been properly recorded.

 

[Include for each plan prominently identified in the cover page, a chart showing the services, Medicare payments, plan payments and insured payments for each plan, using the same language, in the same order, using uniform layout and format as shown in the charts below. No more than four plans may be shown on one chart. For purposes of illustration, charts for each plan are included in this regulation. An issuer may use additional benefit plan designations on these charts pursuant Section 9D of this Regulation.]

 

[Include an explanation of any innovative benefits on the cover page and in the chart, in a manner approved by the Commissioner.]

 

PLAN A

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOSPITALIZATION* Semiprivate room and board, general nursing and miscellaneous service and supplies

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days

are used:

-Additional 365 days

 

- Beyond the Additional

365 days

 

 

 

 

 

All but $[764]

All but $[191] a day

 

 

All but $[382] a day

 

 

$0

 

 

$0

 

 

 

 

 

$0

$[191 a day

 

 

$[382] a day

 

 

100% of Medicare Eligible Expenses

 

$0

 

 

 

 

 

$716 (Part A Deductible)

$0

 

 

$0

 

 

$0**

 

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

All costs

BLOOD

First 3 pints

Additional

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsur-ance for out-patient drugs and in-patient respite care

 

$0

 

Balance

 

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

PLAN A

 

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare-Approved amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUTPATIENT TREATMENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare Approved

Amounts

- Part B Excess Charges (Above

Medicare Approved Amounts)

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

$0

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 20%

 

$0

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

$0

 

All Costs

BLOOD

- First 3 pints

- Next $100 of Medicare Approved

Amounts*

- Remainder of Medicare Approved

Amounts

 

$0

 

$0

 

80%

 

All Costs

 

$0

 

20%

 

$0

 

$100 (Part B Deductible)

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

100%

 

 

$0

 

 

$0

 

PARTS A & B

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled care

services and medical supplies

-- Durable medical equipment

First $100 of Medicare

Approved Amounts*

Remainder of Medicare

Approved Amounts

 

 

 

 

100%

 

 

$0

 

80%

 

 

 

 

$0

 

 

$0

 

20%

 

 

 

 

$0

 

 

$100 (Part B Deductible)

 

$0

 

 

PLAN B

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOSPITALIZATION*

Semiprivate room and board, general nursing and miscellaneous service and supplies:

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days

are used:

- Additional 365 days

 

- Beyond the Additional

365 days

 

 

 

 

 

All but $[764]

All but $[191] a day

 

 

All but $[382] a day

 

 

$0

 

 

$0

 

 

 

 

 

$[764] (Part A Deductible)

$[191] a day

 

 

$[382] a day

 

 

100% of Medicare Eligible Expenses

 

$0

 

 

 

 

 

$0

$0

 

 

$0

 

 

$0**

 

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsurance for out- patient drugs and in-patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

 

 

PLAN B

 

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare-Approved Amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUT-PATIENT TREATMENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 20%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

$0

 

 

All Costs

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

 

$0

 

80%

 

All Costs

 

$0

 

20%

 

$0

 

$100 (Part B Deductible)

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

 

PARTS A & B

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled care

services and medical supplies

-- Durable medical equipment

First $100 of Medicare

Approved Amounts*

Remainder of Medicare

Approved Amounts

 

 

 

 

100%

 

 

$0

 

80%

 

 

 

 

$0

 

 

$0

 

20%

 

 

 

 

$0

 

 

$100 (Part B Deductible)

 

$0

 

 

 

PLAN C

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOSPITALIZATION*

Semiprivate room and board, general nursing and miscel-laneous service and supplies:

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days

are used:

- Additional 365 days

 

- Beyond the Additional

365 days

 

 

 

 

All but $7[64]

All but $[191] a day

 

 

All but $3[82] a day

 

 

$0

 

 

$0

 

 

 

 

$7[64] (Part A Deductible)

$[191] a day

 

 

$3[82] a day

 

 

100% of Medicare Eligible Expenses

 

$0

 

 

 

 

$0

$0

 

 

$0

 

 

$0**

 

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsu-rance for out-patient drugs and in-patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

PLAN C

 

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare-Approved Amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUT-PATIENT TREATMENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$100 (Part B deductible)

 

Generally 20%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

$0

 

 

All Costs

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

 

$0

 

80%

 

All Costs

 

$100 (Part B deductible)

 

20%

 

$0

 

$0

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

PARTS A & B

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled care

services and medical supplies

-- Durable medical equipment

First $100 of Medicare

Approved Amounts*

Remainder of Medicare

Approved Amounts

 

 

 

 

100%

 

 

$0

 

80%

 

 

 

 

$0

 

 

$100 (Part B deductible)

 

20%

 

 

 

 

$0

 

 

$0

 

$0

OTHER BENEFITS -- NOT COVERED BY MEDICARE

 

FOREIGN TRAVEL -- NOT COVERED BY MEDICARE Medically necessary emer-gency care services beginning during the first 60 days of each trip outside the USA

- First $250 each calendar year

- Remainder of Charges

 

 

 

 

 

 

 

$0

$0

 

 

 

 

 

 

 

$0

80% to a lifetime maximum benefit of $50,000

 

 

 

 

 

 

 

$250

20% and amounts over the $50,000 lifetime maximum

 

 

PLAN D

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOSPITALIZATION* Semiprivate room and board, general nursing and miscel-laneous service and supplies

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days are used:

- Additional 365 days

 

- Beyond the Additional 365

days

 

 

 

 

 

All but $[764]

All but $[191] a day

 

All but $[382] a day

 

 

$0

 

 

$0

 

 

 

 

 

$[764] (Part A Deductible)

$[191] a day

 

$[382] a day

 

 

100% of Medicare Eligible Expenses

 

$0

 

 

 

 

 

$0

$0

 

$0

 

 

$0**

 

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsurance for out-patient drugs and in-patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

PLAN D

 

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare-Approved amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUT-PATIENT TREATMENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 20%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

$0

 

 

All Costs

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

 

$0

 

80%

 

All Costs

 

$0

 

20%

 

$0

 

$100 (Part B Deductible)

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

PARTS A & B

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled

care services and medical

supplies

-- Durable medical equipment

- First $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

 

 

 

 

100%

 

 

$0

 

80%

 

 

 

 

 

$0

 

 

$0

 

20%

 

 

 

 

 

$0

 

 

$100 (Part B Deductible)

 

$0

AT-HOME RECOVERY SERVICES -- NOT COVERED BY MEDICARE Home care certified by your doctors, for personal care during recovery from an injury or sickness for which Medicare approved a Home Care Treatment Plan

-- Benefit for each visit

 

-- Number of visits covered

(must be received within 8

weeks of last Medicare

Approved visit)

-- Calendar year maximum

 

 

 

 

 

 

 

 

 

$0

 

$0

 

 

 

$0

 

 

 

 

 

 

 

 

 

Actual Charges to $40 a visit

 

Up to the number of Medicare Approved visits, not to exceed 7 each week

 

$1,600

 

 

 

 

 

 

 

 

 

Balance

 

OTHER BENEFITS -- NOT COVERED BY MEDICARE

 

 

FOREIGN TRAVEL -- NOT COVERED BY MEDICARE

Medically necessary emergency care services beginning during the first 60 days of each trip outside the USA

- First $250 each calendar year

 

- Remainder of Charges

 

 

 

 

 

 

 

 

$0

 

$0

 

 

 

 

 

 

 

 

$0

 

80% to a lifetime maximum benefit of $50,000

 

 

 

 

 

 

 

 

$250

 

20% and amounts over the $50,000 lifetime maximum

 

PLAN E

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOSPITALIZATION* Semiprivate room and board, general nursing and miscel-laneous service and supplies

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days

are used:

- Additional 365 days

 

- Beyond the Additional 365

days

 

 

 

 

All but $[764

All but $[191] a day

 

All but $[382] a day

 

 

 

$0

 

$0

 

 

 

 

$[764] (Part A Deductible)

$[191] a day

 

$[382] a day

 

 

 

100% of Medicare Eligible Expenses

$0

 

 

 

 

$0

$0

 

$0

 

 

 

$0**

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsur-ance for out-patient drugs and in-patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

 

PLAN E

 

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare Approved Amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUT-PATIENT TREATMENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 20%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

$0

 

 

All Costs

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

 

$0

 

80%

 

All Costs

 

$0

 

20%

 

$0

 

$100 (Part B Deductible)

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

 

PARTS A & B

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled

care services and medical

supplies

-- Durable medical equipment

- First $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

 

 

 

 

100%

 

 

$0

 

80%

 

 

 

 

 

$0

 

 

$0

 

20%

 

 

 

 

 

$0

 

 

$100 (Part B Deductible)

 

$0

(continued)

 

PLAN E (continued)

 

OTHER BENEFITS -- NOT COVERED BY MEDICARE

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

FOREIGN TRAVEL -- NOT COVERED BY MEDICARE

Medically necessary emer-gency care services beginning during the first 60 days of each trip outside the USA

- First $250 each calendar year

- Remainder of Charges

 

 

 

 

 

 

 

$0

$0

 

 

 

 

 

 

 

$0

80% to a lifetime maximum benefit of $50,000

 

 

 

 

 

 

 

$250

20% and amounts over the $50,000 lifetime maximum

*PREVENTIVE MEDICAL CARE BENEFIT -- NOT COVERED BY MEDICARE ASome annual physical and preventive tests and services such as: fecal occult blood test, digital rectal exam, mammogram, hearing screening, dipstick urinalysis, diabetes screening, thyroid function test, influenza shot, tetanus and diphtheria booster and education, administered or ordered by your doctor when not covered by Medicare

- First $120 each calendar year

- Additional charges

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$0

$0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$120

$0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$0

All Costs

*Medicare benefits are subject to change. Please consult the latest Guide to Health Insurance for People with Medicare.

 

PLAN F or HIGH DEDUCTIBLE PLAN F

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

**This high deductible plan pays the same or offers the same benefits as Plan F after one has paid a calendar year [$1500] deductible. Benefits from the high deductible plan F will not begin until out-of-pocket expenses are [$1500]. Out-of-pocket expenses for this deductible are expenses that would ordinarily be paid by the policy. This includes the Medicare deductibles for Part A and Part B, but does not include the plan's separate foreign travel emergency deductible.

 

 

 

 

 

SERVICES

 

 

 

MEDICARE PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** PLAN PAYS

IN ADDITION TO $1500 DEDUCTIBLE,** YOU PAY

HOSPITALIZATION* Semiprivate room and board, general nursing and miscel-laneous service and supplies

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days

are used:

- Additional 365 days

 

- Beyond the Additional 365

days

 

 

 

 

All but $[764]

All but $[191] a day

 

All but $[382] a day

 

 

 

$0

 

$0

 

 

 

 

$[764] (Part A Deductible)

$[191] a day

 

$[382] a day

 

 

 

100% of Medicare Eligible Expenses

$0

 

 

 

 

$0

$0

 

$0

 

 

 

$0**

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsur-ance for out-patient drugs and in-patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

 

PLAN F or HIGH DEDUCTIBLE PLAN F

 

MEDICARE (PART B) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

**This high deductible plan pays the same or offers the same benefits as Plan F after one has paid a calendar year [$1500] deductible. Benefits from the high deductible plan F will not begin until out-of-pocket expenses are [$1500]. Out-of-pocket expenses for this deductible are expenses that would ordinarily be paid by the policy. This includes the Medicare deductibles for Part A and Part B, but does not include the plan's separate foreign travel emergency deductible.

 

 

 

 

 

SERVICES

 

 

 

MEDICARE PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** PLAN PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUT-PATIENT TREATMENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

Generally 20%

 

 

100%

 

 

 

 

 

 

 

 

 

 

 

$0

 

$0

 

 

$0

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

 

$0

 

80%

 

All Costs

 

$100 (Part B Deductible)

 

20%

 

$0

 

$0

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

(continued)

 

 

PLAN F or HIGH DEDUCTIBLE PLAN F (cont.)

 

PARTS A & B

 

 

 

 

 

SERVICES

 

 

 

MEDICARE PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** PLAN PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled

care services and medical

supplies

-- Durable medical equipment

- First $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

 

 

 

 

100%

 

 

$0

 

80%

 

 

 

 

 

$0

 

 

$100 (Part B Deductible)

 

20%

 

 

 

 

 

$0

 

 

$0

 

$0

 

OTHER BENEFITS -- NOT COVERED BY MEDICARE

 

 

 

 

 

SERVICES

 

 

 

MEDICARE PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** PLAN PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** YOU PAY

FOREIGN TRAVEL -- NOT COVERED BY MEDICARE

Medically necessary emer-gency care services beginning during the first 60 days of each trip outside the USA

- First $250 each calendar year

 

- Remainder of Charges

 

 

 

 

 

 

 

$0

 

$0

 

 

 

 

 

 

 

$0

 

80% to a lifetime maximum benefit of $50,000

 

 

 

 

 

 

 

$250

 

20% and amounts over the $50,000 lifetime maximum

 

 

PLAN G

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOSPITALIZATION* Semiprivate room and board, general nursing and miscel-laneous service and supplies

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days

are used:

- Additional 365 days

 

- Beyond the Additional 365

days

 

 

 

 

All but $[764]

All but $[191] a day

 

All but $[382] a day

 

 

 

$0

 

$0

 

 

 

 

$[764] (Part A Deductible)

$[191] a day

 

$[382] a day

 

 

 

100% of Medicare Eligible Expenses

$0

 

 

 

 

$0

$0

 

$0

 

 

 

$0**

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsur-ance for out-patient drugs and in-patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

 

PLAN G

 

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare Approved Amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUT-PATIENT TREATMENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 20%

 

 

80%

 

 

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

$0

 

 

20%

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

 

$0

 

80%

 

All Costs

 

$0

 

20%

 

$0

 

$100 (Part B Deductible)

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

(continued)

 

PLAN G (continued)

 

PARTS A & B

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled

care services and medical

supplies

-- Durable medical equipment

- First $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

 

 

 

 

100%

 

 

$0

 

80%

 

 

 

 

 

$0

 

 

$0

 

20%

 

 

 

 

 

$0

 

 

$100 (Part B Deductible)

 

$0

AT-HOME RECOVERY SERVICES -- NOT COVERED BY MEDICARE

Home care certified by your doctors, for personal care during recovery from an injury or sickness for which Medicare approved a Home Care Treatment Plan

-- Benefit for each visit

 

-- Number of visits covered

(must be received within 8

weeks of last Medicare

Approved visit)

 

-- Calendar year maximum

 

 

 

 

 

 

 

 

 

$0

 

$0

 

 

 

 

$0

 

 

 

 

 

 

 

 

 

Actual Charges to $40 a visit

 

Up to the number of Medicare Approved visits, not to exceed 7 each week

 

 

$1,600

 

 

 

 

 

 

 

 

 

Balance

 

OTHER BENEFITS -- NOT COVERED BY MEDICARE

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

FOREIGN TRAVEL -- NOT COVERED BY MEDICARE

Medically necessary emer-gency care services beginning during the first 60 days of each trip outside the USA

- First $250 each calendar year

 

- Remainder of Charges

 

 

 

 

 

 

 

$0

 

$0

 

 

 

 

 

 

 

$0

 

80% to a lifetime maximum benefit of $50,000

 

 

 

 

 

 

 

$250

 

20% and amounts over the $50,000 lifetime maximum

 

PLAN H

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOSPITALIZATION* Semiprivate room and board, general nursing and miscel-laneous service and supplies

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days

are used:

- Additional 365 days

 

- Beyond the Additional 365

days

 

 

 

 

All but $[764]

All but $[191] a day

 

All but $[382] a day

 

 

 

$0

 

$0

 

 

 

 

$[764] (Part A Deductible)

$[191] a day

 

$[382] a day

 

 

 

100% of Medicare Eligible Expenses

$0

 

 

 

 

$0

$0

 

$0

 

 

 

$0**

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsur-ance for out-patient drugs and in-patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

 

PLAN H

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare Approved Amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUTPATIENT TREAT-MENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 20%

 

 

$0

 

 

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

$0

 

 

All Costs

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

 

$0

 

80%

 

All Costs

 

$0

 

20%

 

$0

 

$100 (Part B Deductible)

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

 

PARTS A & B

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled

care services and medical

supplies

-- Durable medical equipment

- First $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

 

 

 

 

100%

 

 

$0

 

80%

 

 

 

 

 

$0

 

 

$0

 

20%

 

 

 

 

 

$0

 

 

$100 (Part B Deductible)

 

$0

(continued)

 

PLAN H (continued)

 

OTHER BENEFITS -- NOT COVERED BY MEDICARE

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

FOREIGN TRAVEL -- NOT COVERED BY MEDICARE

Medically necessary emer-gency care services beginning during the first 60 days of each trip outside the USA

- First $250 each calendar year

 

- Remainder of Charges

 

 

 

 

 

 

 

$0

 

$0

 

 

 

 

 

 

 

$0

 

80% to a lifetime maximum benefit of $50,000

 

 

 

 

 

 

 

$250

 

20% and amounts over the $50,000 lifetime maximum

BASIC OUTPATIENT PRE-SCRIPTION DRUGS -- NOT COVERED BY MEDICARE

- First $250 each calendar year

- Next $2,500 each calendar

year

- Over $2,500 each calendar

year

 

 

 

 

$0

$0

 

$0

 

 

 

 

$0

50% -- $1,250 calendar year maximum benefit

$0

 

 

 

 

$250

50%

 

All Costs

 

PLAN I

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOSPITALIZATION* Semiprivate room and board, general nursing and miscellaneous service and supplies

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days are used:

- Additional 365 days

 

- Beyond the Additional 365

days

 

 

 

 

 

All but $[764]

All but $[191] a day

 

 

All but $[382] a day

 

 

$0

 

 

$0

 

 

 

 

 

$[764] (Part A Deductible)

$[191] a day

 

 

$[382] a day

 

 

100% of Medicare Eligible Expenses

 

$0

 

 

 

 

 

$0

$0

 

 

$0

 

 

$0**

 

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsurance for out- patient drugs and in- patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

PLAN I

 

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare-Approved Amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUT-PATIENT TREATMENT, such as Physician's services, in-patient and out-patient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

$0

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 20%

 

100%

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

$0

 

$0

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

$0

 

80%

 

All Costs

$0

 

20%

 

$0

$100 (Part B Deductible)

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

(continued)

 

PLAN I (continued)

 

PARTS A & B

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled care services and medical supplies

-- Durable medical equipment

- First $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

 

 

100%

 

 

 

$0

 

80%

 

 

 

$0

 

 

 

$0

 

20%

 

 

 

$0

 

 

 

$100 (Part B Deductible)

 

$0

AT-HOME RECOVERY SERVICES -- NOT COVERED BY MEDICARE

Home care certified by your doctors, for personal care during recovery from an injury or sickness for which Medicare approved a Home Care Treatment Plan

-- Benefit for each visit

 

-- Number of visits covered

(must be received within 8

weeks of last Medicare

Approved visit)

 

-- Calendar year maximum

 

 

 

 

 

 

 

 

 

$0

 

$0

 

 

 

 

$0

 

 

 

 

 

 

 

 

 

Actual Charges to $40 a visit

 

Up to the number of Medicare Approved visits, not to exceed 7 each week

 

 

$1,600

 

 

 

 

 

 

 

 

 

Balance

 

OTHER BENEFITS -- NOT COVERED BY MEDICARE

 

 

SERVICES

MEDICARE PAYS

PLAN PAYS

YOU PAY

FOREIGN TRAVEL -- NOT COVERED BY MEDICARE

Medically necessary emer-gency care services beginning during the first 60 days of each trip outside the USA

- First $250 each calendar year

- Remainder of Charges*

 

 

 

 

 

 

 

$0

$0

 

 

 

 

 

 

 

$0

80% to a lifetime maximum benefit of $50,000

 

 

 

 

 

 

 

$250

20% and amounts over the $50,000 lifetime maximum

BASIC OUTPATIENT PRE-SCRIPTION DRUGS -- NOT COVERED BY MEDICARE

- First $250 each calendar year

- Next $2,500 each calendar

year

- Over $2,500 each calendar

year

 

 

 

 

$0

$0

 

$0

 

 

 

 

$0

50% -- $1,250 calendar year maximum benefit

$0

 

 

 

 

$250

50%

 

All Costs

 

 

PLAN J or HIGH DEDUCTIBLE PLAN J

 

MEDICARE (PART A) -- HOSPITAL SERVICES -- PER BENEFIT PERIOD

 

*A benefit period begins on the first day you receive service as an inpatient in a hospital and ends after you have been out of the hospital and have not received skilled care in any other facility for 60 days in a row.

**This high deductible plan pays the same or offers the same benefits as Plan J after one has paid a calendar year [$1500] deductible. Benefits from high deductible plan J will not begin until out-of-pocket expenses are [$1500]. Out-of-pocket expenses for this deductible are expenses that would ordinarily be paid by the policy. This includes the Medicare deductibles for Part A and Part B, but does not include the plan's separate prescription drug deductible or the plan's separate foreign travel emergency deductible.

 

 

 

 

 

SERVICES

 

 

 

MEDICARE PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** PLAN PAYS

IN ADDITION TO $1500 DEDUCTIBLE,** YOU PAY

HOSPITALIZATION*

Semiprivate room and board, general nursing and miscellaneous service and supplies

First 60 days

61st thru 90th day

91st day and after:

- While using 60 lifetime

reserve days

- Once lifetime reserve days are used:

- Additional 365 days

 

- Beyond the Additional 365

days

 

 

 

 

 

All but $[764]

All but $[191] a day

 

 

All but $[382] a day

 

 

$0

 

 

$0

 

 

 

 

 

$[764] (Part A Deductible)

$[191] a day

 

 

$[382] a day

 

 

100% of Medicare Eligible Expenses

 

$0

 

 

 

 

 

$0

$0

 

 

$0

 

 

$0**

 

 

All Costs

SKILLED NURSING FACILITY CARE*

You must meet Medicare's requirements, including having been in a hospital for at least 3 days and entered a Medicare-approved facility within 30 days after leaving the hospital

- First 20 days

- 21st thru 100th day

- 101st day and after

 

 

 

 

 

 

 

 

 

All approved amounts

All but $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

Up to $[95.50] a day

$0

 

 

 

 

 

 

 

 

 

$0

$0

All costs

BLOOD

First 3 pints

Additional amounts

 

$0

100%

 

3 pints

$0

 

$0

$0

HOSPICE CARE

Available as long as your doctor certifies you are terminally ill and you elect to receive these services

 

All but very limited coinsurance for out-patient drugs and in-patient respite care

 

$0

 

Balance

 

**NOTICE: When your Medicare Part A hospital benefits are exhausted, the insurer stands in the place of Medicare and will pay whatever amount Medicare would have paid for up to an additional 365 days as provided in the policy's "Core Benefits." During this time the hospital is prohibited from billing you for the balance based on any difference between its billed charges and the amount Medicare would have paid.

 

PLAN J

 

MEDICARE (PART B) -- MEDICAL SERVICES -- PER CALENDAR YEAR

 

*Once you have been billed $100 of Medicare-Approved Amounts for covered services (which are noted with an asterisk), your Part B Deductible will have been met for the calendar year.

 

 

 

 

 

SERVICES

 

 

 

MEDICARE PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** PLAN PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** YOU PAY

MEDICAL EXPENSES -- IN OR OUT OF THE HOSPITAL AND OUT-PATIENT TREATMENT, such as Physician's services, inpatient and outpatient medical and surgical services and supplies, physical and speech therapy, diagnostic tests, durable medical equipment,

- First 100 days of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

- Part B Excess Charges

(Above Medicare Approved

Amounts)

 

 

 

 

 

 

 

 

 

 

 

$0

 

Generally 80%

 

$0

 

 

 

 

 

 

 

 

 

 

 

$100 (Part B Deductible)

 

Generally 20%

 

100%

 

 

 

 

 

 

 

 

 

 

 

$0

 

$0

 

$0

BLOOD

- First 3 pints

- Next $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

$0

$0

 

80%

 

All Costs

$100 (Part B Deductible)

 

20%

 

$0

$0

 

$0

CLINICAL LABORATORY SERVICES -- BLOOD TESTS FOR DIAGNOSTIC SERVICES

 

 

 

100%

 

 

 

$0

 

 

 

$0

(continued)

 

PLAN J or HIGH DEDUCTIBLE PLAN J (cont.)

 

PARTS A & B

 

 

 

 

 

SERVICES

 

 

 

MEDICARE PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** PLAN PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** YOU PAY

HOME HEALTH CARE MEDICARE APPROVED SERVICES

-- Medically necessary skilled care services and medical supplies

-- Durable medical equipment

- First $100 of Medicare

Approved Amounts*

- Remainder of Medicare

Approved Amounts

 

 

 

100%

 

 

 

$0

 

80%

 

 

 

$0

 

 

 

$100 (Part B Deductible)

 

20%

 

 

 

$0

 

 

 

$0

 

$0

AT-HOME RECOVERY SERVICES -- NOT COVERED BY MEDICARE Home care certified by your doctors, for personal care during recovery from an injury or sickness for which Medicare approved a Home Care Treatment Plan

-- Benefit for each visit

 

-- Number of visits covered

(must be received within 8

weeks of last Medicare

Approved visit)

 

-- Calendar year maximum

 

 

 

 

 

 

 

 

 

$0

 

$0

 

 

 

 

$0

 

 

 

 

 

 

 

 

 

Actual Charges to $40 a visit

 

Up to the number of Medicare Approved visits, not to exceed7 each week

 

 

$1,600

 

 

 

 

 

 

 

 

 

Balance

(continued)

 

PLAN J or HIGH DEDUCTIBLE PLAN J (cont.)

 

OTHER BENEFITS--NOT COVERED BY MEDICARE

 

 

 

 

 

SERVICES

 

 

 

MEDICARE PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** PLAN PAYS

AFTER YOU PAY $1500 DEDUCTIBLE,** YOU PAY

FOREIGN TRAVEL -- NOT COVERED BY MEDICARE

Medically necessary emer-gency care services beginning during the first 60 days of each trip outside the USA

- First $250 each calendar year

- Remainder of Charges

 

 

 

 

 

 

 

$0

$0

 

 

 

 

 

 

 

$0

80% to a lifetime maximum benefit of $50,000

 

 

 

 

 

 

 

$250

20% and amounts over the $50,000 lifetime maximum

EXTENDED OUTPATIENT PRESCRIPTION DRUGS -- NOT COVERED BY MEDICARE

- First $250 each calendar year

- Next $6,000 each calendar

year

- Over $6,000 each calendar

year

 

 

 

 

$0

$0

 

$0

 

 

 

 

$0

50% -- $3,000 calendar year maximum benefit

$0

 

 

 

 

$250

50%

 

All Costs

***PREVENTIVE MEDI-CAL CARE BENEFIT -- NOT COVERED BY MEDICARE

ASome annual physical and preventive tests and services such as: fecal occult blood test, digital rectal exam, mammogram, hearing screening, dipstick urinalysis, diabetes screening, thyroid function test, influenza shot, tetanus and diphtheria booster and education, administered or ordered by your doctor when not covered by Medicare

- First $120 each calendar year

- Additional charges

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$0

$0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$120

$0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$0

All Costs

***Medicare benefits are subject to change. Please consult the latest Guide to Health Insurance for People with Medicare.

 

[Drafting Note: The term "certificate" should be substituted for the word "policy" throughout the outline of coverage where appropriate.]

D. Notice Regarding Policies or Certificates Which are Not Medicare Supplement Policies.

(1) Any accident and sickness insurance policy or certificate, other than a Medicare supplement policy, or a policy issued pursuant to a contract under Section 1876 of the Federal Social Security Act (42 U.S.C. § 1395 et seq.), disability income policy; basic, catastrophic, or major medical expense policy; single premium nonrenewable policy or other policy identified in Section 3B of this regulation, issued for delivery in this State to persons eligible for Medicare by reason of age shall notify insureds under the policy that the policy is not a Medicare supplement policy or certificate. The notice shall either be printed or attached to the first page of the outline of coverage delivered to insureds under the policy, or if no outline of coverage is delivered, to the first page of the policy or certificate delivered to insureds. The notice shall be in no less than twelve (12) point type and shall contain the following language:

 

"THIS [POLICY OR CERTIFICATE] IS NOT A MEDICARE SUPPLEMENT [POLICY OR CONTRACT]. If you are eligible for Medicare, review the "Guide to Health Insurance for People with Medicare" available from the company."

(2) Applications provided to persons eligible for Medicare for the health insurance policies or certificates described in Subsection D(1) shall disclose, using the applicable statement in Appendix C, the extent to which the policy duplicates Medicare. The disclosure statement shall be provided as a part of, or together with, the application for the policy or certificate.

 

Cross-reference to Section 16: See Appendix C, page ____.

 

Section 187. Requirements for Application Forms and Replacement Coverage

A. Application forms shall include the following questions designed to elicit information as to whether, as of the date of the application, the applicant has another Medicare supplement or other health insurance policy or certificate in force or whether a Medicare supplement policy or certificate is intended to replace any other accident and sickness or certificate is intended to replace any other accident and sickness policy or certificate presently in force. A supplementary application or other form to be signed by the applicant and agent containing such questions and statements may be used.

 

[Statements]

(1) You do not need more than one Medicare supplement policy.

(2) If you purchase this policy, you may want to evaluate your existing health coverage and decide if you need multiple coverages.

(3) You may be eligible for benefits under Medicaid and may not need a Medicare supplement policy.

(4) The benefits and premiums under your Medicare supplement policy can be suspended, if requested, during your entitlement to benefits under Medicaid for 24 months. You must request this suspension within 90 days of becoming eligible for Medicaid. If you are no longer entitled to Medicaid, your policy will be reinstituted if requested within 90 days of losing Medicaid eligibility.

(5) Counseling services are available in your state to provide advice concerning your purchase of Medicare supplement insurance and concerning medical assistance through the state Medicaid program, including benefits as a Qualified Medicare Beneficiary (QMB) and a Specified Low-Income Medicare Beneficiary (SLMB).

 

[Questions]

 

To the best of your knowledge.

(1) Do you have another Medicare supplement policy or certificate in force (including health care service contract, health maintenance organization contract)?

(a) If so, with which company?

(b) If so, do you intend to replace your current Medicare supplement policy with this policy [certificate]?

(2) Do you have any other health insurance coverage that provides benefits similar to this Medicare supplement policy?

(a) If so, with which company?

(b) What kind of policy?

(3) Are you covered for medical assistance through the State Medicaid program:

(a) As a Specified Low-Income Medicare Beneficiary (SLMB)?

(b) As a Qualified Medicare Beneficiary (QMB)?

(c) For Other Medicaid medical benefits?

B. Agents shall list any other health policies they have sold to the applicant.

(1) list policies sold which are still in force.

(2) List policies sold in the past five (5) years which are no longer in force.

C. In the case of a direct response issuer, a copy of the application or supplemental form, signed by the applicant, and acknowledged by the insurer, shall be returned to the applicant by the insurer upon delivery of the policy.

D. Upon determining that a sale will involve replacement of Medicare supplement coverage, any issuer, other than a direct response insurer, or its agent, shall furnish the applicant, prior to issuance or delivery of the Medicare supplement policy or certificate, a notice regarding replacement of accident and sickness coverage. One copy of such notice signed by the applicant and the agent, except where the coverage is sold without an agent, shall be provided to the applicant and an additional signed copy shall be retained by the insurer. A direct response issuer shall deliver to the applicant at the time of the issuance of the policy the notice regarding replacement of accident and sickness coverage.

E. The notice required by Subsection D above for an issuer shall be provided in substantially the following form in no less than twelve (12) point type.

 

NOTICE TO APPLICANT REGARDING REPLACEMENT OF MEDICARE SUPPLEMENT INSURANCE

 

[Insurance company's name and address]

 

SAVE THIS NOTICE! IT MAY BE IMPORTANT TO YOU IN THE FUTURE

 

According to [your application] [information you have furnished], you intend to terminate existing Medicare supplement insurance and replace it with a policy to be issued by [Company Name] Insurance Company. Your new policy will provide thirty (30) days within which you may decide without cost whether you desire to keep the policy.

 

You should review this new coverage carefully. Compare it with all accident and sickness coverage you now have. If, after due consideration, you find that purchase of this Medicare supplement coverage is a wise decision, you should terminate your present Medicare supplement coverage. You should evaluate the need for other accident and sickness coverage you have that may duplicate this policy.

 

STATEMENT TO APPLICANT BY ISSUER, AGENT [BROKER OR OTHER REPRESENTATIVE]:

 

I have reviewed your current medical or health insurance coverage. To the best of my knowledge, this Medicare supplement policy will not duplicate your existing Medicare coverage because you intend to terminate your existing Medicare supplement coverage. The replacement policy is being purchased for the following reason(s) (check one):

 

________Additional benefits.

________No change in benefits, but lower premiums.

________Fewer benefits and lower premiums.

________Other. ____________________________________________

____________________________________________

1. Health conditions which you may presently have (preexisting conditions) may not be immediately or fully covered under the new policy. This could result in denial or delay of a claim for benefits under the new policy, whereas a similar claim might have been payable under your present policy.

2. State law provides that your replacement policy or certificate may not contain new preexisting conditions, waiting period, elimination periods or probationary periods.

3. If you still wish to terminate your present policy and replace it with new coverage, be certain to truthfully and completely answer all questions on the application concerning your medical and health history. Failure to include all material medical information on an application may provide a basis for the company to deny any future claims and to refund your premium as though your policy had never been in force. After the application has been completed and before you sign it, review it carefully to be certain that all information has been properly recorded. [If the policy or certificate is guaranteed issue, this paragraph need not appear.]

 

Do not cancel your present policy until you have received you new policy and are sure that your want to keep it.

 

________________________________________________

(Signature of Agent, Broker or Other Representative)

 

[Typed Name and Address of Issuer, Agent or Broker]

 

________________________________________________

(Applicant's Signature)

 

___________________________________

(Date)

 

*Signature not required for direct response sales.

 

F. Paragraphs 1 and 2 of the replacement notice (applicable to preexisting conditions) may be deleted by an issuer if the replacement does not involve application of a new preexisting condition limitation.

 

Section 198. Filing Requirements for Advertising

 

An issuer shall provide a copy of any Medicare supplement advertisement intended for use in this State whether through written, radio or television medium to the Commissioner of Insurance of this State for review or approval by the Commissioner to the extent it may be required under state law.

 

Section 2019. Standards for Marketing

A. An issuer directly or through its producers, shall:

(1) Establish marketing procedures to assure that any comparison of policies by its agents or other producers will be fair and accurate.

(2) Establish marketing procedures to assure excessive insurance is not sold or issued.

(3) Display prominently by type or other appropriate means, on the first page of the policy the following:

 

"Notice to buyer: This policy may not cover all of your medical expenses."

(4) Inquire and otherwise make every reasonable effort to identify whether a prospective applicant or enrollee for Medicare supplement insurance already has accident and sickness insurance and the types and amounts of any such insurance.

(5) Establish auditable procedures for verifying compliance with this Subsection A.

B. In addition to the practices prohibited in [insert citation to state unfair trade practices act], the following acts and practices are prohibited:

(1) Twisting. Knowingly making any misleading representation or incomplete or fraudulent comparison of any insurance policies or insurers for the purpose of including, or tending to induce, any person to lapse, forfeit, surrender, terminate, retain, pledge, assign, borrow on, or convert any insurance policy or to take out a policy of insurance with another insurer.

(2) High pressure tactics. Employing any method of marketing having the effect of or tending to induce the purchase of insurance through force, fright, threat, whether explicit or implied, or undue pressure to purchase or recommend the purchase of insurance.

(3) Cold lead advertising. Making use directly or indirectly of any method of marketing which fails to disclose in a conspicuous manner that a purpose of the method of marketing is solicitation of insurance and that contact will be made by an insurance agent or insurance company.

C. The terms "Medicare Supplement," "Medigap," "Medicare Wraparound" and words of similar import shall not be used unless the policy is issued in compliance with this regulation.

 

Section 210. Appropriateness of Recommended Purchase and Excessive Insurance

A. In recommending the purchase or replacement of any Medicare supplement policy or certificate an agent shall make reasonable efforts to determine the appropriateness of a recommended purchase or replacement.

B. Any sale of Medicare supplement coverage that will provide an individual more than one Medicare supplement policy or certificate is prohibited.

Section 221. Reporting of Multiple Policies

A. On or before March 1 of each year, an issuer shall report the following information for every individual resident of this State for which the issuer has in force more than one Medicare supplement policy or certificate:

1. Policy and certificate number; and

2. Date of issuance.

B. The items set forth above must be grouped by individual policyholder.

 

Section 232. Prohibition Against Preexisting Conditions, Waiting Periods, Elimination Periods and Probationary Periods in Replacement Policies or Certificates

A. If a Medicare supplement policy or certificate replaces another Medicare supplement policy or certificate, the replacing issuer shall waive any time periods applicable to preexisting conditions, waiting periods, elimination periods and probationary periods in the new Medicare supplement policy or certificate to the extent such time was spent under the original policy.

B. If a Medicare supplement policy or certificate replaces another Medicare supplement policy or certificate which has been in effect for at least six (6) months, the replacing policy shall not provide any time period applicable to preexisting conditions, waiting periods, elimination periods and probationary periods.

 

Section 243. Separability

 

If any provision of this regulation or the application thereof to any person or circumstances is for any reason held to be invalid, the remainder of the regulation and the application of such provision to other persons or circumstances shall not be affected thereby.

 

Section 254. Effective Date

 

This Regulation shall be effective on January 1, 1992.

David N. Levinson

November 8, 1991

 

APPENDIX A

 

MEDICARE SUPPLEMENT REFUND CALCULATION FORM

FOR CALENDAR YEAR _________________________

 

TYPE1 ____________________________ SMSBP2_________________________________________

FOR THE STATE OF ________________ COMPANY NAME ______________________________

NAIC Group Code ___________________ NAIC Company Code ______________________________

PERSON COMPLETING THIS EXHIBIT _______________________________________________

Title ______________________________ Telephone Number _________________________________

 

(a) (b)

Earned Incurred

Premium3 Claims4

 

Line

1. Current Year's Experience

a. Total (all policy years)

b. Current year's issues (%)

c. Net (for reporting purposes = 1a - 1b) ______________ ______________

 

2. Past Years' Experience (All Policy Years) ______________ ______________

 

3. Total Experience

(Net Current Year + Past Years' Experience) ______________ ______________

 

4. Refunds Last Year (Excluding Interest) ______________ ______________

 

5. Previous Since Inception (Excluding Interest) ______________ ______________

 

6. Refunds Since Inception (Excluding Interest) ______________ ______________

 

7. Benchmark Ratio Since Inception

(SEE WORKSHEET FOR RATIO 1) ______________

 

8. Experienced Ratio Since Inception ______________

 

Total Actual Incurred Claims (Line 3, Col. b) = Ratio 2

____________________________________________

 

Tot. Earned Prem. (Line 3, Col. a -- Refunds Since Inception (line 6)

 

9. Life Years Exposed Since Inception ________________________

 

If the Experienced Ratio is less than the Benchmark Ratio, and there are more than 500 life years exposure, then proceed to calculation of refund.

APPENDIX A

 

MEDICARE SUPPLEMENT REFUND CALCULATION FORM

FOR CALENDAR YEAR _________________________

 

TYPE1 ____________________________ SMSBP2_________________________________________

FOR THE STATE OF ________________ COMPANY NAME ______________________________

NAIC Group Code ___________________ NAIC Company Code ______________________________

PERSON COMPLETING THIS EXHIBIT ________________________________________________

Title ______________________________ Telephone Number _________________________________

 

10. Tolerance Permitted (obtained from credibility table) ________________________

 

11. Adjustment to Incurred Claim for Credibility ______________________

Ratio 3 = Ratio 2 + Tolerance

 

If Ratio 3 is more than benchmark ratio (ratio 1), a refund or credit to premium is not required.

 

12. Adjusted Incurred Claims = ___________________________

(Tot. Earned Premiums (line 3, col. a) -- Refunds Since Inception (line 6) x Ratio 3 (line 11)

 

13. Refund = Total Earned Premium (line 3, col. a) --

Refunds Since Inception (line 6) --

Adjusted Incurred Claims (line 12)

Benchmark Ratio (Ratio 1) ____________________________

 

If the amount on line 13 is less than .005 times the annualized premium in force as of December 31 of the reporting year, then no refund is made. Otherwise, the amount on line 13 is to be refunded or credited, and a description of the refund and/or credit against premiums to be used must be attached to this form.

 

MEDICARE SUPPLEMENT CREDIBILITY TABLE

 

Life Years Exposed Since Inception Tolerance

 

10,000+ 0.0%

5,000 - 9,999 5.0%

2,500 - 4,999 7.5%

1,000 - 2,499 10.0%

500 - 999 15.0%

 

If less than 500, no credibility.

 

1Individual, group, individual Medicare Select, or group Medicare "Select only

2"SMSBP" = Standardized Medicare Supplement Benefit Plan

3Includes model Loadings and fees charged.

4Excludes Active Life Reserves.

5This is to be used as "Issue Year Earned Premium" for Year 1 of next year's "Worksheet for Calculation of Benchmark Ratios".

 

I certify that the above information and calculations are true and accurate to the best of my knowledge and belief.

 

___________________________________________

Signature

 

___________________________________________

Name -- Please Type

 

___________________________________________

Title

 

___________________________________________

Date

 

APPENDIX A

REPORTING FORM FOR THE CALCULATION OF BENCHMARK RATIO SINCE INCEPTION

FOR INDIVIDUAL POLICIES FOR CALENDAR YEAR __________________

 

TYPE1 ____________________________ SMSBP2_________________________________________

FOR THE STATE OF ________________ COMPANY NAME ______________________________

NAIC Group Code ___________________ NAIC Company Code ______________________________

PERSON COMPLETING THIS EXHIBIT ________________________________________________

Title ______________________________ Telephone Number _________________________________

 

 

 

(a)3

(b)4

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

(o)5

Year

Earned Premium

Factor

(b) x (c)

Cumula-tive Loss Ratio

(d) x (e)

Factor

(b) x (g)

Cumula -tive Loss Ratio

(h) x (i)

Policy Year Loss Ratio

1

 

2.770

 

0.442

 

0.000

 

0.000

 

0.4

2

 

4.175

 

0.493

 

0.000

 

0.000

 

0.55

3

 

4.175

 

0.493

 

1.194

 

0.659

 

0.65

4

 

4.175

 

0.493

 

2.245

 

0.669

 

0.67

5

 

4.175

 

0.493

 

3.170

 

0.678

 

0.69

6

 

4.175

 

0.493

 

3.998

 

0.686

 

0.71

7

 

4.175

 

0.493

 

4.754

 

0.695

 

0.73

8

 

4.175

 

0.493

 

5.445

 

0.702

 

0.75

9

 

4.175

 

0.493

 

6.075

 

0.708

 

0.76

10

 

4.175

 

0.493

 

6.650

 

0.713

 

0.76

11

 

4.175

 

0.493

 

7.176

 

0.717

 

0.76

12

 

4.175

 

0.493

 

7.655

 

0.720

 

0.77

13

 

4.175

 

0.493

 

8.093

 

0.723

 

0.77

14

 

4.175

 

0.493

 

8.493

 

0.725

 

0.77

15

 

4.175

 

0.493

 

8.684

 

0.725

 

0.77

Total

 

 

(k):

 

(l):

 

(m):

 

(n):

 

 

Benchmark Ratio Since Inception: (l n) / (k m): _________________________________________

 

1Individual, group, individual Medicare Select, or group Medicare "Select only

2"SMSBP" = Standardized Medicare Supplement Benefit Plan - Use "P" for pre-standardized plans

3Year 1 is the current calendar year - 1. Year 2 is the current calendar year - 2 (etc.) (Example: If the current year is 1991, then: Year 1 is 1990; Year 2 is 1989, etc.)

4For the calendar year on the appropriate line in column (a), the premium earned during that year for policies issued in that year.

5These loss ratios are not explicitly used in computing the benchmark loss ratios. They are the loss ratios, on a policy year basis, which result in the cumulative loss ratios displayed on this worksheet. They are shown here for informational purposes only.

 

APPENDIX A

REPORTING FORM FOR THE CALCULATION OF BENCHMARK RATIO SINCE INCEPTION

FOR INDIVIDUAL POLICIES FOR CALENDAR YEAR __________________

 

 

TYPE1 ____________________________ SMSBP2_________________________________________

FOR THE STATE OF ________________ COMPANY NAME ______________________________

NAIC Group Code ___________________ NAIC Company Code ______________________________

PERSON COMPLETING THIS EXHIBIT _______________________________________________

Title ______________________________ Telephone Number _________________________________

 

 

 

(a)3

(b)4

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

(o)5

Year

Earned Premiu m

Factor

(b) x (c)

Cumula-tive Loss Ratio

(d) x (e)

Factor

(b) x (g)

Cumula-tive Loss Ratio

(h) x (i)

Policy Year Loss Ratio

1

 

2.770

 

0.507

 

0.000

 

0.000

 

0.46

2

 

4.175

 

0.567

 

0.000

 

0.000

 

0.63

3

 

4.175

 

0.567

 

1.194

 

0.759

 

0.75

4

 

4.175

 

0.567

 

2.245

 

0.771

 

0.77

5

 

4.175

 

0.567

 

3.170

 

0.782

 

0.8

6

 

4.175

 

0.567

 

3.998

 

0.792

 

0.82

7

 

4.175

 

0.567

 

4.754

 

0.802

 

0.84

8

 

4.175

 

0.567

 

5.445

 

0.811

 

0.87

9

 

4.175

 

0.567

 

6.075

 

0.818

 

0.88

10

 

4.175

 

0.567

 

6.650

 

0.824

 

0.88

11

 

4.175

 

0.567

 

7.176

 

0.828

 

0.88

12

 

4.175

 

0.567

 

7.655

 

0.831

 

0.88

13

 

4.175

 

0.567

 

8.093

 

0.834

 

0.89

14

 

4.175

 

0.567

 

8.493

 

0.837

 

0.89

15

 

4.175

 

0.567

 

8.684

 

0.838

 

0.89

Total

 

 

(k):

 

(l):

 

(m):

 

(n):

 

 

Benchmark Ratio Since Inception: (l n) / (k m): _________________________________________

 

1Individual, group, individual Medicare Select, or group Medicare "Select only

2"SMSBP" = Standardized Medicare Supplement Benefit Plan - Use "P" for pre-standardized plans

3Year 1 is the current calendar year - 1. Year 2 is the current calendar year - 2 (etc.) (Example: If the current year is 1991, then: Year 1 is 1990; Year 2 is 1989, etc.)

4For the calendar year on the appropriate line in column (a), the premium earned during that year for policies issued in that year.

5These loss ratios are not explicitly used in computing the benchmark loss ratios. They are the loss ratios, on a policy year basis, which result in the cumulative loss ratios displayed on this worksheet. They are shown here for informational purposes only.

 

APPENDIX B

 

FORM FOR REPORTING

DUPLICATE MEDICARE SUPPLEMENT POLICIES

 

Company Name: ________________________________________________

 

Address: ________________________________________________

________________________________________________

 

Phone Number: ________________________________________________

 

Due March 1, annually

 

The purpose of this form is to report the following information on each resident of this state who has in force more than one Medicare supplement policy or certificate. The information is to be grouped by individual policyholder.

 

Policy and Date of

Certificate # Issuance

 

__________________ _________________

 

____________________________________

Signature

 

____________________________________

Name and Title (please type)

 

____________________________________

Date

 

APPENDIX C

 

DISCLOSURE STATEMENTS

 

Instructions for Use of the Disclosure Statements for

Health Insurance Policies sold to Medicare Beneficiaries

that Duplicate Medicare

 

1. Section 1882(d) of the Federal Social Security Actlaw, P.L. 103Ñ432, [42 U.S.C. 1395ss] prohibits the sale of a health insurance policy (the term policy or policies includes certificates) that duplicate Medicare benefits unless it will pay benefits without regard to other health coverage and it includes the prescribed disclosure statement on or together with the application.

2. All types of health insurance policies that duplicate Medicare shall include one of the attached disclosure statements, according to the particular policy type involved, on the application or together with the application. The disclosure statement may not vary from the attached statements in terms of language or format (type size, type proportional spacing, bold character, line spacing, and usage of boxes around text).

3. State and federal law prohibits insurers from selling a Medicare supplement policy to a person that already has a Medicare supplement policy except as a replacement.

4. Property/casualty and life insurance policies are not considered health insurance.

5. Disability income policies are not considered to provide benefits that duplicate Medicare.

6. Long-term care insurance policies that coordinate with Medicare and other health insurance are not considered to provide benefits that duplicate Medicare.

7. The federal law does not pre-empt state laws that are more stringent than the federal requirements.

87. The federal law does not pre-empt existing state form filing requirements.

9. Section 1882 of the federal Social Security Act was amended in Subsection (d)(3)(A) to allow for alternative disclosure statements. The disclosure statements already in Appendix C remain. Carriers may use either disclosure statement with the requisite insurance product. However, carriers should use either the original disclosure statements or the alternative disclosure statements and not use both simultaneously.

 

[Original disclosure statement fFor policies that provide benefits for expenses incurred for an accidental injury only]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

This insurance provides limited benefits, if you meet the policy conditions, for hospital or medical expenses that result from accidental injury. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

This insurance duplicates Medicare benefits when it pays:

hospital or medical expenses up to the maximum stated in the policy

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

hospitalization

physician services

other approved items and services

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Original disclosure statement Ffor policies that provide benefits for specified limited services]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

This insurance provides limited benefits, if you meet the policy conditions, for expenses relating to the specific services listed in the policy. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

This insurance duplicates Medicare benefits when:

any of the services covered by the policy are also covered by Medicare

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

hospitalization

physician services

other approved items and services

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Original disclosure statement Ffor policies that reimburse expenses incurred for specified disease(s) or other specified impairment(s). This includes expense incurred cancer, specified disease and other types of health insurance policies that limit reimbursement to named medical conditions.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

This insurance provides limited benefits, if you meet the policy conditions, for hospital or medical expenses only when you are treated for one of the specific diseases or health conditions listed in the policy. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

This insurance duplicates Medicare benefits when it pays:

hospital or medical expenses up to the maximum stated in the policy

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

hospitalization

physician services

other approved items and services

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Original disclosure statement Ffor policies that pay fixed dollar amounts for specified diseases or other specified impairments. This includes cancer, specified disease, and other health insurance policies that pay a scheduled benefit or specific payment based on diagnosis of the conditions named in the policy.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

This insurance pays a fixed amount, regardless of your expenses, if you meet the policy conditions, for one of the specific diseases or health conditions named in the policy. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

This insurance duplicates Medicare benefits because Medicare generally pays for most of the expenses for the diagnosis and treatment of the specific conditions or diagnoses named in the policy.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

hospitalization

physician services

hospice

other approved items and services

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Original disclosure statement Ffor indemnity policies and other policies that pay a fixed dollar amount per day, excluding long-term care policies.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

This insurance pays a fixed amount, regardless of your expenses, for each day you meet the policy conditions. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

This insurance duplicates Medicare benefits when:

any expenses or services covered by the policy are also covered by Medicare

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

hospitalization

physician services

hospice

other approved items and services

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Original disclosure statement Ffor policies that provide benefits for both expenses incurred and fixed indemnity basis]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

This insurance pays limited reimbursement for expenses if you meet the conditions listed in the policy. It also pays a fixed amount, regardless of your expenses, if you meet other policy conditions. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

This insurance duplicates Medicare benefits when:

 

any expenses or services covered by the policy are also covered by Medicare; or

it pays the fixed dollar amount stated in the policy and Medicare covers the same event

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

hospitalization

physician services

hospice

other approved items and services

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[For long-term care policies providing both nursing home and noninstitutional coverage]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

Federal law requires us to inform you that this insurance duplicates Medicare benefits in some situations.

 

This is a long-term care insurance that provides benefits for covered nursing home and home care services.

In some situations Medicare pays for short periods of skilled nursing home care, limited home health services and hospice care.

This insurance does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Neither Medicare nor Medicare Supplement insurance provides benefits for most long-term care expenses.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about long-term care insurance, review the Shopper's Guide to Long-Term Care Insurance, available from the insurance company.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[For policies providing nursing home benefits only]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

Federal law requires us to inform you that this insurance duplicates Medicare benefits in some situations.

 

This insurance provides benefits primarily for covered nursing home services.

In some situations Medicare pays for short periods of skilled nursing home care and hospice care.

This insurance does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Neither Medicare nor Medicare Supplement insurance provides benefits for most nursing home expenses.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about long-term care insurance, review the Shopper's Guide to Long-Term Care Insurance, available from the insurance company.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[For policies providing home care benefits only]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

Federal law requires us to inform you that this insurance duplicates Medicare benefits in some situations.

 

This insurance provides benefits primarily for covered home care services.

In some situations Medicare will cover some health related services in your home and hospice care which may also be covered by this insurance.

This insurance does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Neither Medicare nor Medicare Supplement insurance provides benefits for most services in your home.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about long-term care insurance, review the Shopper's Guide to Long-Term Care Insurance, available from the insurance company.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Original disclosure statement Ffor other health insurance policies not specifically identified in the previous statements]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS INSURANCE DUPLICATES SOME MEDICARE BENEFITS

 

This is not Medicare Supplement Insurance

 

This insurance provides limited benefits if you meet the conditions listed in the policy. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

This insurance duplicates Medicare benefits when it pays:

 

the benefits stated in the policy and coverage for the same event is provided by Medicare

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

 

hospitalization

physician services

hospice

other approved items and services

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Alternative disclosure statement for policies that provide benefits for expenses incurred for an accidental injury only.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS IS NOT MEDICARE SUPPLEMENT INSURANCE

 

Some health care services paid for by Medicare may also trigger the payment of benefits from this policy.

 

This insurance provides limited benefits, if you meet the policy conditions, for hospital or medical expenses that result from accidental injury. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

 

hospitalization

physician services

other approved items and services

 

This policy must pay benefits without regard to other health benefit coverage to which you may be entitled under Medicare or other insurance.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Alternative disclosure statement for policies that provide benefits for specified limited services.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS IS NOT MEDICARE SUPPLEMENT INSURANCE

 

Some health care services paid for by Medicare may also trigger the payment of benefits from this policy.

 

This insurance provides limited benefits, if you meet the policy conditions, for expenses relating to the specific services listed in the policy. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

 

hospitalization

physician services

other approved items and services

 

This policy must pay benefits without regard to other health benefit coverage to which you may be entitled under Medicare or other insurance.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Alternative disclosure statement for policies that reimburse expenses incurred for specified diseases or other specified impairments. This includes expense-incurred cancer, specified disease and other types of health insurance policies that limit reimbursement to named medical conditions.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS IS NOT MEDICARE SUPPLEMENT INSURANCE

 

Some health care services paid for by Medicare may also trigger the payment of benefits from this policy. Medicare generally pays for most or all of these expenses.

 

This insurance provides limited benefits, if you meet the policy conditions, for hospital or medical expenses only when you are treated for one of the specific diseases or health conditions listed in the policy. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

 

hospitalization

physician services

hospice

other approved items and services

 

This policy must pay benefits without regard to other health benefit coverage to which you may be entitled under Medicare or other insurance.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Alternative disclosure statement for policies that pay fixed dollar amounts for specified diseases or other specified impairments. This includes cancer, specified disease, and other health insurance policies that pay a scheduled benefit or specific payment based on diagnosis of the conditions named in the policy.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS IS NOT MEDICARE SUPPLEMENT INSURANCE

 

Some health care services paid for by Medicare may also trigger the payment of benefits from this policy.

 

This insurance pays a fixed amount, regardless of your expenses, if you meet the policy conditions, for one of the specific diseases or health conditions named in the policy. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

 

hospitalization

physician services

hospice

other approved items and services

 

This policy must pay benefits without regard to other health benefit coverage to which you may be entitled under Medicare or other insurance.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Alternative disclosure statement for indemnity policies and other policies that pay a fixed dollar amount per day, excluding long-term care policies.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS IS NOT MEDICARE SUPPLEMENT INSURANCE

 

Some health care services paid for by Medicare may also trigger the payment of benefits from this policy.

 

This insurance pays a fixed dollar amount, regardless of your expenses, for each day you meet the policy conditions. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

 

hospitalization

physician services

hospice

other approved items and services

 

This policy must pay benefits without regard to other health benefit coverage to which you may be entitled under Medicare or other insurance.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Alternative disclosure statement for policies that provide benefits upon both an expense-incurred and fixed indemnity basis.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS IS NOT MEDICARE SUPPLEMENT INSURANCE

 

Some health care services paid for by Medicare may also trigger the payment of benefits from this policy.

 

This insurance pays limited reimbursement for expenses if you meet the conditions listed in the policy. It also pays a fixed amount, regardless of your expenses, if you meet other policy conditions. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

 

hospitalization

physician services

hospice

other approved items and services

 

This policy must pay benefits without regard to other health benefit coverage to which you may be entitled under Medicare or other insurance.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

[Alternative disclosure statement for other health insurance policies not specifically identified in the preceding statements.]

 

IMPORTANT NOTICE TO PERSONS ON MEDICARE

THIS IS NOT MEDICARE SUPPLEMENT INSURANCE

 

Some health care services paid for by Medicare may also trigger the payment of benefits from this policy.

 

This insurance provides limited benefits if you meet the conditions listed in the policy. It does not pay your Medicare deductibles or coinsurance and is not a substitute for Medicare Supplement insurance.

 

Medicare generally pays for most or all of these expenses.

 

Medicare pays extensive benefits for medically necessary services regardless of the reason you need them. These include:

 

hospitalization

physician services

hospice

other approved items and services

 

This policy must pay benefits without regard to other health benefit coverage to which you may be entitled under Medicare or other insurance.

 

Before You Buy This Insurance

 

4 Check the coverage in all health insurance policies you already have.

4 For more information about Medicare and Medicare Supplement insurance, review the Guide to Health Insurance for People with Medicare, available from the insurance company.

4 For help in understanding your health insurance, contact your state insurance department or state senior insurance counseling program.

 

 

 

 

 

 

DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Air & Waste Management

Air Quality Management Section

Statutory Authority: 7 Delaware Code,

Chapter 60 (7 Del.C. Ch. 60)

 

REGISTER NOTICE

 

1. TITLE OF THE REGULATIONS:

REGULATION NO. 25 - "REQUIREMENTS FOR PRECONSTRUCTION REVIEW" OF THE STATE OF DELAWARE REGULATIONS GOVERNING THE CONTROL OF AIR POLLUTION

 

2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES:

The Department is proposing to amend Regulation No. 25 to correct deficiencies identified by the EPA in an April 3, 1998 Federal Register rulemaking (Volume 63, Number 64, pages 16433 - 16435) and to clarify existing provisions of the regulation. The corrections to noted deficiencies include the public participation procedures for nonattainment new source review (NSR) permits, and the criteria to claim emission reductions to be used as the offset requirement for new major sources or major modifications to existing major sources of volatile organic compounds or nitrogen oxides emissions. The federal requirements for these provisions are found at 40 CFR Part 51 Subpart I, "Review of New Sources and Modifications."

3. POSSIBLE TERMS OF THE AGENCY ACTION:

None

 

4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT:

7 Delaware Code, Chapter 60

 

5. OTHER REGULATIONS THAT MAY BE AFFECTED BY THE PROPOSAL:

None

 

6. NOTICE OF PUBLIC COMMENT:

The public comment period for this proposed revision will extend to, at least, March 30, 1999. Interested parties may submit comments in writing during this time frame to: Leslie Andersen, Air Quality Management Section, 715 Grantham Lane, New Castle, DE 19720, and/or statements and testimony may be presented either orally or in writing at the public hearing to be held on Tuesday, March 23, 1999 beginning at 6:00 p.m. at the DNREC Richardson & Robbins Building in Dover, DE.

 

7. PREPARED BY:

Leslie C. Andersen (302) 323-4542, February 10, 1999

 

 

REGULATION NO. 25

REQUIREMENTS FOR PRECONSTRUCTION REVIEW

 

01/11/93 xx/xx/99

Section 1 - General Provisions

 

1.1 Requirements of this regulation are in addition to any other requirements of the State of Delaware Regulations Governing the Control of Air Pollution.

 

1.2 Any stationary source which will impact an attainment area or an unclassifiable area as designated by the U.S. Environmental Protection Agency (EPA) pursuant to Section 107 of the Clean Air Act Amendments of 1990 (CAA), is subject to the regulations of Section 3, Prevention of Significant Deterioration (PSD).

 

1.3 Any stationary source which will impact a non-attainment area as designated by the EPA pursuant to Section 107 of the CAA is subject to the regulations of Section 2, Emission Offset Provisions (EOP).

 

1.4 A source may be subject to PSD for one pollutant and to EOP for another pollutant, or may affect both attainment or unclassifiable areas and a non-attainment area for the same pollutant.

 

1.5 Any emission limitation represented by Lowest Achievable Emission Rate (LAER) may be imposed by the Department pursuant to regulations adopted under Section 2 herein notwithstanding any emission limit specified elsewhere in the State of Delaware Regulations Governing the Control of Air Pollution.

 

1.6 Any emission limitation represented by Best Available Control Technology (BACT) may be imposed by the Department pursuant to regulations adopted under Section 3 herein notwithstanding any emission limit specified elsewhere in the State of Delaware Regulations Governing the Control of Air Pollution.

 

1.7 No stationary source shall be constructed unless the applicant can substantiate to the Department that the source will comply with any applicable emission limit or New Source Performance Standard or Emission Standard for a Hazardous Air Pollutant as set forth in the State of Delaware Regulations Governing the Control of Air Pollution.

1.8 Any stationary source that implements, for the purpose of gaining relief from Regulation 25, Section 3, by any physical or operational limitation on the capacity of the source to emit a pollutant, including (but not limited to) air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design and the limitation or the effect it would have on emissions is enforceable, not withstanding any emission limit specified elsewhere in the State of Delaware Regulations Governing the Control of Air Pollution. If a source petitions the Department for relief from any resulting limitation described above, the source is subject to review under Regulation 25, Sections 2 and 3 as though construction had not yet commenced on the source or modification.

 

1.9 Definitions - For the purposes of this regulation

A. "Major Stationary Source" - See Sections 2.2 and 3.0

B. "Major Modification"

1. Major modification means any physical change or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the CAA.

2. Any net emissions increase that is significant for either volatile organic compounds or nitrogen oxides shall be considered significant for ozone.

3. A physical change or change in the method of operation shall not include:

i. Routine maintenance, repair and replacement;

ii. Use of an alternative fuel or raw material by reason of an order under sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

iii. Use of an alternative fuel by reason of an order or rule under Section 125 of the CAA;

iv. Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;

v. Use of an alternative fuel or raw material by a stationary source which:

a. The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any previously issued permit condition which was established after January 6, 1975.

b. The source is approved to use under any previously issued PSD permit or under Regulation 25, Section 3.

vi. An increase in the hours of operation or in the production rate, unless such change would be prohibited under any previously issued permit condition which was established after January 6, 1975;

vii. Any change in ownership at a stationary source.

C. "Net Emissions Increase"

1. Net emissions increase means the amount by which the sum of the following exceeds zero:

i. Any increase in actual emissions from a particular physical change or change in method of operation at a stationary source; and

ii. Any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.

2. An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs between:

i. The date five years before construction on the particular change commences; and

ii. The date that the increase from the particular change occurs.

3. An increase or decrease in actual emissions is creditable only if the Department has not relied on it in issuing a permit for the source under this section, which permit is in effect when the increase in actual emissions from the particular change occurs.

4. An increase or decrease in actual emissions of sulfur dioxide or particulate matter which occurs before the applicable baseline date is creditable only if it is required to be considered in calculating the amount of maximum allowable increases remaining available.

5. An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

6. A decrease in actual emissions is creditable only to the extent that:

i. The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

ii. It is enforceable at and after the time that actual construction on the particular change begins; and

iii. It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.

iv. It has not been adopted by the Department as a required reduction to be made part of the SIP or it is not required by the Department pursuant to an existing requirement of the SIP.

7. An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

D. "Potential to Emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.

E. "Stationary Source" means any building, structure, facility or installation which emits or may emit any air pollutant subject to regulation under the CAA.

F. "Building, Structure, Facility, or Installation" means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control). Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same "Major Group" (i.e., which have the same first two digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement (U.S. Government Printing Office stock numbers 4101-0066 and 003-005-00176-0, respectively). For purposes of Section 2, this definition shall apply only to the "Building, Structure or Facility".

G. "Emissions Unit" means any part of a stationary source which emits or would have the potential to emit any pollutant subject to regulation under the CAA.

H. "Construction" means any physical change or change in the method of operation (including fabrication, erection, installation, demolition or modification of an emissions unit) which would result in a change in actual emissions.

I. "Commence" as applied to construction of a major stationary source or major modification means that the owner or operator has all necessary preconstruction approvals or permits and either has:

1. Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

2. Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.

J. "Necessary Preconstruction Approvals or Permits" means those permits or approvals required under Delaware air quality control laws and regulations.

K. "Begin Actual Construction" means, in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying underground pipework and construction or permanent storage structures. With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

L. "Best Available Control Technology" means an emissions limitation (including a visible emission standard) based on the maximum degree of reduction for each pollutant subject to regulation under CAA which would be emitted from any proposed major stationary source or major modification which the Department, on a case-by-case basis, takes into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under Regulation 20 and 21. If the Department determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.

M. "Baseline Concentration"

1. Baseline concentration means that ambient concentration level which exists in the baseline area at the time of the applicable baseline date. A baseline concentration is determined for each pollutant for which a baseline date is established and shall include:

i. The actual emissions representative of sources in existence on the applicable baseline date, except as provided in paragraph 1.9M(2);

ii. The allowable emissions of major stationary sources which commenced construction before January 6, 1975, but were not in operation by the applicable baseline date.

2. The following will not be included in the baseline concentration and will affect the applicable maximum allowable increase(s):

i. Actual emissions from any major stationary source on which construction commenced after January 6, 1975; and

ii. Actual emissions increases and decreases at any stationary source occurring after the baseline date.

N. "Baseline Date"

1. Baseline date means the earliest date after August 7, 1977, on which the first complete application is submitted by a major stationary source or major modification subject to the requirements of Regulation 25, Section 3.

2. Baseline date means the earliest date after August 7, 1977, but before the effective date of this regulation, on which the first complete application by a major stationary source or major modification which would have been subject to the requirements of Regulation 25, Section 3 if application were submitted after the effective date of this regulation.

3. The baseline date is established for each pollutant for which increments or other equivalent measures have been established if:

i. The area in which the proposed source or modification would construct is designated as attainment or unclassifiable for the pollutant on the date of its complete application under this section; and

ii. In the case of a major stationary source, the pollutant would be emitted in significant amounts, or, in the case of a major modification, there would be a significant net emissions increase of the pollutant.

O. "Baseline Area"

1. Baseline area means any intrastate area (and every part thereof) designated as attainment or unclassifiable in which the major source or major modification establishing the baseline date would construct or would have an air quality impact equal to or greater than 1 1g/m3 (annual average) of the pollutant for which the baseline date is established.

2. Area redesignations cannot intersect or be smaller than the area of impact of any major stationary source or major modification which:

i. Establishes a baseline date, or

ii. Is subject to this section.

P. "Allowable Emissions" means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to enforceable limits which restrict the operating rate, or hours of operation, or both) and the most stringent of the following:

1. The applicable standards as set forth in Regulations 20 and 21;

2. Other applicable Delaware State Implementation Plan emissions limitations, including those with a future compliance date; or

3. The emissions rate specified as an enforceable permit condition, including those with a future compliance date.

Q. "Secondary Emissions" means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this section, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions may include, but are not limited to:

1. Emissions from ships, trains, or other vehicles coming to or from the new or modified stationary source; and

2. Emissions from any offsite support facility(s) which would not otherwise be constructed or increase its emissions as a result of the construction or operation of the major stationary source or major modification.

R. "Innovative Control Technology" means any system of air pollution control that has not been adequately demonstrated in practice, but would have a substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy economics, or non-air quality environmental impacts.

S. "Fugitive Emissions" means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

T. "Actual Emissions:

1. Actual emissions means the actual rate of emissions of a pollutant from an emission unit, as determined in accordance with subparagraphs (2) through (4) below.

2. In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation. The Department shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

3. The Department may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

4. For any emissions unit which has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

U. "Complete" means, in reference to an application for a permit, that the application contains all of the information necessary for processing the application.

V. "Significant"

1. Significant means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant and Emissions Rate

Carbon monoxide: 100 tons per year (TPY)

Sulfur dioxide: 40 TPY

Particulate matter: 25 TPY

Ozone: New Castle and Kent Counties - 25 TPY of either volatile organic compounds or nitrogen oxides *

Sussex County - 40 TPY of either volatile organic compounds or nitrogen oxides *

Lead: 0.6 TPY

Asbestos: 0.007 TPY

Beryllium: 0.0004 TPY

Mercury: 0.1 TPY

Vinyl chloride: 1 TPY

Fluorides: 3 TPY

Sulfuric acid mist: 7 TPY

Hydrogen sulfide (H2S): 10 TPY

Total reduced sulfur (including H2S): 10 TPY

Reduced sulfur compounds (including H2S): 10 TPY

PM10 particulate: 15 TPY

 

* Note: Increases in net emissions shall not exceed 25 tons per year in New Castle and Kent Counties, or 40 tons per year in Sussex, when aggregated with all other net increases in emissions from the source over any period of five consecutive calendar years which includes the calendar year in which such increases occur. No part of the five consecutive years shall extend before January 1, 1991.

2. "Significant" means, in reference to a net emissions increase or the potential of a source to emit a pollutant subject to regulation under the CAA that paragraph 1.9 V.(1) does not list, any emissions rate.

3. Notwithstanding paragraph 1.9 V.(1), "significant" means any emissions rate or any net emissions increase associated with a major stationary source or major modification, which would construct within ten kilometers of a Class I area, and have an impact on such area equal to or greater than 1 1g/m3, (24-hour average).

W. "Fixed capital cost" means the capital needed to provide all the depreciable components.

X. "Lowest Achievable Emission Rate (LAER) means the same as defined in Regulation No. 1, "Definitions and Administrative Principles".

Y. "Reconstruction" will be presumed to have taken place where the fixed capital cost of the new components exceed 50 percent of the fixed capital cost of a comparable entirely new stationary source. Any final decision as to whether reconstruction has occurred shall be made in accordance with the provisions of 40 CFR 60.15(f)(1)-(3). A reconstructed stationary source will be treated as a new stationary source for purposes of this regulation. In determining lowest achievable emission rate (LAER) for a reconstructed stationary source, the provisions of 40 CFR 60.15(f)(4) shall be taken into account in assessing whether a new source performance standard is applicable to such stationary source.

Z. "Ozone Transport Region" means the region designated by section 184 of the federal Clean Air Act and comprised of the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia and northern Virginia.

AA. "Permanent" (Reductions) means that the actual emission reductions submitted to the Department for certification have been incorporated in a permit or a permit condition or, in the case of a shutdown, the permit to operate for the emission unit(s) has been voided.

BB. "Quantifiable" (Reductions) means that the amount, rate and characteristics of emission reductions can be determined by methods that are considered reliable by the Department and the Administrator of the EPA.

CC. "Real" (Reductions) means reductions in actual emissions released into the atmosphere.

DD. "Surplus" (Reductions) means actual emission reductions below the baseline (see Section 2.5(B)) not required by regulations or proposed regulations, and not used by the source to meet any state or federal regulatory requirements.

EE. "Enforceable" means any standard, requirement, limitation or condition established by an applicable federal or state regulation or specified in a permit issued or order entered thereunder, or contained in a SIP approved by the Administrator of the U.S. Environmental Protection Agency (EPA), and which can be enforced by the Department and the Administrator of the EPA.

01/11/93 xx/xx/99

Section 2 - Emission Offset Provisions (EOP)

 

2.1 Applicability - The provisions of this Section shall apply to any person responsible for any proposed new major stationary source or any proposed major modification.

 

2.2 For purposes of Section 2, "major stationary source" means

A. Any stationary source of air pollutants which emits, or has the potential to emit, 100 tons per year or more of any pollutant subject to regulation under the Clean Air Act, except for either volatile organic compound or nitrogen oxides, or

B. Any stationary source of air pollutants which emits, or has the potential to emit either volatile organic compounds or nitrogen oxides in the following amounts:

1. New Castle & Kent Counties - 25 tons per year of either volatile organic compounds or oxides of nitrogen For areas in ozone attainment, ozone marginal, or ozone moderate nonattainment areas and located in the ozone transport region - 50 tons per year volatile organic compounds or 100 tons per year of oxides of nitrogen; or

2. Sussex County - For serious ozone nonattainment areas - 50 tons per year of either volatile organic compounds or oxides of nitrogen, or

3. For severe ozone nonattainment areas - 25 tons per year of either volatile organic compounds or oxides of nitrogen, or

4. For extreme ozone nonattainment areas - 10 tons per year of either volatile organic compounds or oxides of nitrogen.

C. Any physical change that would occur at a stationary source not qualifying under paragraph (A) or (B) as a major stationary source, if the change would constitute a major stationary source by itself.,or

D. A major stationary source that is major for either volatile organic compounds or nitrogen oxides shall be considered major for ozone, and "installation" means an identifiable piece of process, combustion or incineration equipment.

 

2.3 For the purposes of Sections 2.4 and 2.5 of this regulation, emission units located in areas designated as attainment or marginal nonattainment areas that are located within the ozone transport region shall be considered located in a moderate ozone nonattainment area.

 

2.3 2.4 Conditions for Approval - No person subject to the provisions of subsection 2.1 shall install a major stationary source of volatile organic compounds or of nitrogen oxides, or make a major modification to a source which will cause or contribute to any violation of the national ambient air quality standards for ozone within an area of non-attainment for that pollutant unless the following conditions are met:

A. The new major source or the major modification is controlled by the application of lowest achievable emission rate (LAER) control technology.

B. All existing sources in the State owned or controlled by the owner of the proposed new or modified source are in compliance with the applicable local, State and federal regulations or are in compliance with a consent order specifying a schedule and timetable for compliance.

C. To the extent that allowable emissions of VOC from the new major stationary source or major modification will exceed the growth allowance in the State Implementation Plan, an emission reduction from existing sources shall be provided prior to start-up of the applicable source such that total allowable emissions from the existing sources and new major stationary sources will be less than that allowed from the existing source under the existing state implementation plan requirements. Where no emission limit exists under the state implementation plan, the level of emissions in existence at the time the permit application is filed shall be used in determining the baseline for the emission reduction.

For the purposes of satisfying The new or modified source must satisfy the following offset requirements,:

1. For New Castle & Kent Counties, 1.3 to 1, or

2. For Sussex County, 1.15 to 1

1. The ratio of total actual emissions reductions of volatile organic compounds or nitrogen oxides to total allowable increased emissions of volatile organic compounds or nitrogen oxides shall be:

a. For moderate ozone nonattainment areas, 1.15 to 1, or

b. For serious ozone nonattainment areas, 1.2 to 1, or

c. For severe ozone nonattainment areas, 1.3 to 1, or

d. For extreme ozone nonattainment areas, 1.5 to 1.

2. All offsets shall be federally enforceable at the time of application to construct and shall be in effect by the time the new or modified source commences construction.

D. The emission reduction required by Section 2.3 C is implemented such that there is a net air quality benefit in the affected area.

E.

D. 1. The application for construction permit pursuant to Regulation No. II 2 shall include an analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source which demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.

2. Public participation for the construction permit shall be pursuant to Regulation No. 2, Section 12.3 or 12.4 and 12.5.

 

2.5 Criteria for Emission Reductions Used as Offsets

A. All emission reductions claimed as offset credits shall be real, surplus, quantifiable, and federally enforceable;

B. The baseline for determining credit for emissions reductions shall be the lower of actual or allowable emissions. The offset credit shall only be allowed for emission reductions made below the baseline;

C. Emission reductions claimed as offsets shall be included in the most recent rate of progress (ROP) emissions inventory and shall have occurred on or after January 1, 1991;

D. Credit for an emission reduction may be claimed for use as an offset to the extent that the Department has not relied on it in issuing any permit under this regulation and has not relied on it for demonstration of attainment or reasonable further progress;

E. Emission reductions shall not be used as offsets in an area with a higher nonattainment classification than the one in which they were generated.

F. Emission reductions claimed as offsets by a source must be generated from within the same nonattainment area or from any other area that contributes to a violation of the ozone National Ambient Air Quality Standard in the nonattainment area which the source is located.

 

2.6 Emission reductions generated in a state other than Delaware and which are placed in the emissions bank established pursuant to Regulation No. 34 of the State of Delaware's "Regulations Governing the Control of Air Pollution" may be used as offsets provided they are federally enforceable and meet, at a minimum, all the provisions of Regulation No. 34 and Sections 2.5(E), and (F) of this regulation.

 

03/29/88

Section 3 - Prevention of Significant Deterioration of Air Quality

 

3.0 Definitions - For purposes of this Section 3

A. "Major Stationary Source"

(1) Major stationary source means:

(i) Any of the following stationary sources of air pollutants which emits or has the potential to emit, 100 tons per year or more of any pollutant subject to regulation under the CAA: Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input, coal cleaning plants (with thermal dryers), kraft pulp mills, portland cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production plants, chemical process plants, fossil fuel boilers (or combinations thereof) totaling more than 250 million British thermal units per hour heat input, petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels, taconite ore processing plants, glass fiber processing plants, and charcoal production plants;

(ii) Notwithstanding the stationary source size specified in paragraph 3.0 A.(1)(i) of this section, any stationary source which emits, or has the potential to emit, 250 tons per year or more of any air pollutant subject to regulation under the CAA; or

(iii) Any physical change that would occur at a stationary source not otherwise qualifying under paragraph 3.0 as a major stationary source, if the change would constitute a major stationary source by itself.

(2) A major stationary source that is major for volatile organic compounds shall be considered major for ozone.

 

3.1 Ambient Air Increments. In areas designated as Class I, II or III, increases in pollutant concentration over the baseline concentration shall be limited to the following:

 

Maximum allowable increase

(Micrograms per cubic meter)

 

Class I

 

Pollutant

Total suspended particulates:

Annual geometric mean 5

24-hour maximum 10

Sulfur dioxide:

Annual arithmetic mean 2

24-hour maximum 5

3-hour maximum 25

 

Class II

Pollutant

Total suspended particulates:

Annual geometric mean 19

24-hour maximum 37

 

Sulfur dioxide:

Annual arithmetic mean 20

24-hour maximum 91

3-hour maximum 512

 

Class III

Total suspended particulates:

Annual geometric mean 37

24-hour maximum 75

 

Sulfur dioxide:

Annual arithmetic mean 40

24-hour maximum 182

3-hour maximum 700

 

For any period other than an annual period, the applicable maximum allowable increase may be exceeded during one such period per year at any one location.

 

3.2 Ambient Air Ceilings. No concentration of a pollutant shall exceed:

A. The concentration permitted under the national secondary ambient air quality standard, or

B. The concentration permitted under the national primary ambient air quality standard, whichever concentration is lowest for the pollutant for a period of exposure.

3.3 Restrictions on Area Classification.

A. All Areas in the State of Delaware are designated Class II, but may be redesignated as provided in 40 CFR 52.51(g).

B. The following areas may be redesignated only as Class I:

(1) Bombay Hook National Wildlife Refuge; and

(2) A national park or national wilderness area established after August 7, 1977 which exceeds 10,000 acres in size.

 

3.4 Exclusions from Increment Consumption

A. Upon written request of the governor, made after notice and opportunity for at least one public hearing to be held in accordance with procedures established by the State of Delaware, the Department shall exclude the following concentrations in determining compliance with a maximum allowable increase:

(1) Concentrations attributable to the increase in emissions from stationary sources which have converted from the use of petroleum products, natural gas, or both by reason of an order in effect under sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) over the emissions from such sources before the effective date of such an order;

(2) Concentrations attributable to the increase in emissions from sources which have converted from using natural gas by reason of a natural gas curtailment plan in effect pursuant to the Federal Power Act over the emissions from such sources before the effective date of such plan;

(3) Concentrations of particulate matter attributable to the increase in emissions from construction or other temporary emission-related activities of new or modified sources;

B. No exclusion of such concentrations shall apply more than five years after the effective date of the order to which paragraph 3.4A(1) refers or the plan to which paragraph 3.4A(2) refers, whichever is applicable. If both such order and plan are applicable, no such exclusion shall apply more than five years after the later of such effective dates.

 

3.5 Stack Heights

The provisions of Regulation 27 - STACK HEIGHTS, are applicable to this section.

 

3.6 Review of Major Stationary Sources and Major Modifications - Source Applicability and Exemptions.

A. No stationary source or modification to which the requirements of paragraphs 3.7 through 3.14 of this section apply shall begin actual construction without a permit which states that the stationary source or modification would meet those requirements. The Department has authority to issue any such permit.

B. The requirements of paragraphs 3.7 through 3.14 of this section shall apply to any major stationary source and any major modification with respect to each pollutant subject to regulation under the CAA that it would emit, except as this section otherwise provides.

C. The requirements of paragraphs 3.7 through 3.14 of this section apply only to any major stationary source or major modification that would be constructed in an area designated as attainment or unclassifiable.

D. The requirements of paragraphs 3.7 through 3.14 of this section shall not apply to a particular major stationary source or major modification, if:

(1) The source or modification would be a nonprofit health or nonprofit educational institution, or a major modification would occur at such an institution, and the governor requests that it be exempt from those requirements; or

(2) The source or modification would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and the source does not belong to any of the following categories:

(i) Coal cleaning plants (with thermal dryers);

(ii) Kraft pulp mills;

(iii) Portland cement plants;

(iv) Primary zinc smelters;

(v) Iron and steel mills;

(vi) Primary aluminum ore reduction plants;

(vii) Primary copper smelters;

(viii) Municipal incinerators capable of charging more than 250 tons of refuse per day;

(ix) Hydrofluoric, sulfuric, or nitric acid plants;

(x) Petroleum refineries;

(xi) Lime plants;

(xii) Phosphate rock processing plants;

(xiii) Coke oven batteries;

(xiv) Sulfur recovery plants;

(xv) Carbon black plants (furnace process);

(xvi) Primary lead smelters;

(xvii) Fuel conversion plants;

(xviii) Sintering plants;

(xix) Secondary metal production plants;

(xx) Chemical process plants;

(xxi) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input:

(xxii) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(xxiii) Taconite ore processing plants;

(xxiv) Glass fiber processing plants;

(xxv) Charcoal production plants;

(xxvi) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input;

(xxvii) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the CAA; or

(3) The source is a portable stationary source which has previously received a permit under this section, and

(i) The owner or operator proposal to relocate the source and emissions of the source at the new location would be temporary; and

(ii) The emissions from the source would not exceed its allowable emissions; and

(iii) The emissions from the source would impact no Class I area and no area where an applicable increment is known to be violated; and

(iv) Reasonable notice is given to the Department prior to the relocation identifying the proposed new location and the probable duration of operation at the new location. Such notice shall be given to the Department not less than ten days in advance of the proposed relocation unless a different time duration is previously approved by the Department.

E. The requirements of paragraphs 3.7 through 3.14 of this section shall not apply to a major stationary source or major modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that pollutant, the source or modification is located in an area designated as non-attainment.

F. The requirements of paragraphs 3.8, 3.10, and 3.12 of this section shall not apply to a major stationary source or major modification with respect to a particular pollutant, if the allowable emissions of that pollutant from the source, or the net emissions increase of that pollutant from the modification:

(1) Would impact no Class I area and no area where an applicable increment is known to be violated, and

(2) Would be temporary.

G. The Department may exempt a stationary source or modification from the requirements of paragraph 3.10 with respect to monitoring for a particular pollutant if:

(1) The emissions increase of the pollutant from the new source or the net emissions increase of the pollutant from the modification would cause, in any area, air quality impacts less than the following amounts:

Carbon monoxide: 575 ug/m3, 8-hour average;

Nitrogen dioxide: 14 ug/m3, annual average;

Total suspended particulate: 10 ug/m3, 24-hour average;

Sulfur dioxide: 13 ug/m3, 24-hour average;

Ozone (Note 1)

Lead: 0.1 ug/m3, 24-hour average;

Mercury: 0.25 ug/m3, 24-hour average;

Beryllium: 0.0005 ug/m3, 24-hour average;

Fluorides: 0.25 ug/m3, 24-hour average;

Vinyl chloride: 15 ug/m3, 24-hour average;

Total reduced sulfur: 10 ug/m3, 1-hour average;

Hydrogen sulfide: 0.04 ug/m3, 1-hour average;

Reduced sulfur compounds: 10 ug/m3, 1-hour average;

PM10 particulate: 10 ug/m3, 24-hour average

 

(2) The concentrations of the pollutant in the area that the source or modification would affect are less than the concentrations listed in paragraph 3.6G(1), or the pollutant is not listed in paragraph 3.6G(1).

 

3.7 Control Technology Review

A. A major stationary source or major modification shall meet each applicable emissions limitation of the State of Delaware's Air Pollution Control Regulations.

B. A new major stationary source shall apply best available control technology for each pollutant subject to regulation under the CAA that it would have the potential to emit in significant amounts.

C. A major modification shall apply best available control technology for each pollutant subject to regulation under the CAA for which it would result in a significant net emissions increase at the source. This requirement applies to each proposed emissions unit at which a net emissions increase in the pollutant would occur as a result of a physical change or change in the method of operation in the unit.

D. For phase construction projects, the determination of best available control technology shall be reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of best available control technology for the source.

 

Note 1: No de minimus air quality level is provided for ozone. However, any net increase of 100 tons per year or more of volatile organic compounds subject to PSD would be required to perform an ambient impact analysis including the gathering of ambient air quality data.

 

3.8 Source Impact Analysis. The owner or operator of the proposed source or modification shall demonstrate that allowable emission increases from the proposed source or modification, in conjunction with all other applicable emissions increases or reductions (including secondary emissions), would not cause or contribute to air pollution in violation of:

A. Any national ambient air quality standard in any air quality control region; or

B. Any applicable maximum allowable increase over the baseline concentration in any area.

 

3.9 Air Quality Models.

A. All estimates of ambient concentrations required under this section shall be based on the applicable air quality models, data bases, and other requirements specified in the "Guideline on Air Quality Models" (OA-QPS 1.2-080, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, N.C. 27711, April, 1978 or its subsequent revisions). This document is incorporated by reference.

B. When an air quality impact model specified in the "Guideline on Air Quality Models" is inappropriate, the model may be modified or another model substituted. Such a change must be subject to the notice and opportunity for public comment under paragraph 3.14 of this section. Written approval of the Department must be obtained for any modification or substitution. Methods like those outlined in the "Workbook for the Comparison of Air Quality Models" (U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, N.C. 17711, May, 1978 or its subsequent revisions) should be used to determine the comparability of air quality models.

 

3.10 Air Quality Analysis

A. Preapplication Analysis.

(1) Any application for a permit under this section shall contain an analysis of ambient air quality in the area that the major stationary source or major modification would affect for each of the following pollutants:

(i) For the source, each pollutant that it would have the potential to emit in a significant amount;

(ii) For the modification, each pollutant for which it would result in a significant net emissions increase.

(2) With respect to any such pollutant for which no National Ambient Air Quality Standard exists, the analysis shall contain such air quality monitoring data as the Department determines is necessary to assess ambient air quality for that pollutant in any area that the emissions of that pollutant would affect.

(3) With respect to any such pollutant (other than non-methane hydrocarbons) for which such a standard does exist, the analysis shall contain continuous air quality monitoring data gathered for purposes of determining whether emissions of that pollutant would cause or contribute to a violation of the standard or any maximum allowable increase.

(4) In general, the continuous air quality monitoring data that is required shall have been gathered over a period of at least one year and shall represent at least the year preceding receipt of the application, except that, if the Department determines that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one year (but not to be less than four months), the data that is required shall have been gathered over at least that shorter period.

(5) The owner or operator of a proposed stationary source or modification of volatile organic compounds who satisfies all of the following conditions may provide post-approval monitoring data for ozone in lieu of providing preconstruction data as required under paragraph 3.10A.

Condition 1: The new source is required to meet an emission limitation which specifies the lowest achievable emission rate for such source.

Condition 2: The applicant must certify that all existing major sources owned or operated by the applicant (or any entity controlling, controlled by, or under common control with the applicant) in Delaware are in compliance with all applicable emission limitations and standards under the CAA (or are in compliance with an expeditious schedule approved by the Department).

Condition 3: Emission reductions ("offsets") from existing sources in the area of the proposed source (whether or not under the same ownership) are required such that there will be reasonable progress toward attainment of the applicable NAAQS. Only intrapollutant emission offsets will be acceptable (e.g., hydrocarbon increases may not be offset against SO(reductions)).

Condition 4: The emission offsets will provide a positive net air quality benefit in the affected area (see 40 CFR Part 51 App. S). Atmospheric simulation modeling is not necessary for volatile organic compounds and NOx. Fulfillment of Condition 3 will be considered adequate to meet this condition for volatile organic compounds and NOx.

B. Post-construction monitoring. The owner or operator of a major stationary source or major modification shall, after construction of the stationary source or modification conduct such ambient monitoring as the Department determines is necessary to determine the effect emissions from the stationary source or modification may have, or are having, on air quality in any area.

C. Operations of monitoring stations. The owner or operator of a major stationary source or major modification shall meet the Quality Assurance Requirements for PSD Air Monitoring as preapproved by the Department during the operation of monitoring stations for purposes of satisfying paragraph 3.10 of this section.

 

3.11 Source Information. The owner or operator of proposed source or modification shall submit all information necessary to perform any analysis or make any determination required under this section.

A. With respect to a source or modification to which paragraphs 3.8, 3.10, and 3.12 of this section apply, such information shall include but not be limited to:

(1) A description of the nature, location, design capacity and typical operating schedule of the source or modification, including specifications and drawings showing its design and plant layout;

(2) A detailed schedule for construction of the source or modification;

(3) A detailed description as to what system of continuous emission reduction is planned for the source or modification, emission estimates, and any other information necessary to determine that best available control technology would be applied

B. Upon request of the Department, the owner or operator shall also provide information on:

(1) The air quality impact of the source or modification, including meteorological and topographical data necessary to estimate such impact; and

(2) The air quality impacts, and the nature and extent of any or all general commercial, residential, industrial, and other growth which has occurred since August 7, 1977 or the applicable baseline date(s), in the area the source or modification would affect.

 

3.12 Additional Impact Analyses.

A. The owner or operator shall provide an analysis of the impairment to visibility, soils and vegetation that would occur as a result of the source or modification and general commercial, residential, industrial and other growth associated with the source or modification. The owner or operator need not provide an analysis of the impact on vegetation having no significant commercial or recreational value.

B. The owner or operator shall provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industrial and other growth associated with the source or modification.

 

3.13 Public Participation

A. Within 30 days after receipt of an application to construct, or any addition to such application, the Department shall advise the applicant of any deficiency in the application or in the information submitted. In the event of such a deficiency, the date of receipt of the application shall be, for the purpose of this section, the date on which the Department received all required information.

B. Within one year after receipt of a complete application, the Department shall make a final determination on the application. This involves performing the following actions in a timely manner:

(1) Make a preliminary determination whether construction should be approved, approved with conditions, or disapproved.

(2) Make available a copy of all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination.

(3) Notify the public, by advertisement in a newspaper of general circulation in each region in which the proposed source or modification would be constructed, of the application, the preliminary determination, the degree of increment consumption that is expected from the source or modification, and the opportunity for comment at public hearing as well as written public comment.

(4) Send a copy of the notice of public comment to the applicant and to officials and agencies having cognizance over the location where the proposed construction would occur as follows: the chief executives of the city and county where the source or modification would be located and any comprehensive regional land use planning agency whose lands may be affected by emissions from the source or modification. Additionally, if the proposed source would have significant interstate impact, the Governor of that impacted state would be notified.

(5) Provide opportunity for a public hearing for interested persons to appear and submit written or oral comments on the air quality impact of the source or modification, alternatives to the source or modification, the control technology required, and other appropriate considerations.

(6) Consider all written comments submitted within a time specified in the notice of public comment and all comments received at any public hearing(s) in making a final decision on the approvability of the application. No later than ten days after the close of the public comment period, the applicant may submit a written response to any comments submitted by the public. The Department shall consider the applicant's response in making a final decision. The Department shall make all comments available for public inspection in the same locations where the Department made available preconstruction information relating to the proposed source or modification.

(7) Make a final determination whether construction should be approved, approved with conditions, or disapproved pursuant to this section.

(8) Notify the applicant in writing of the final determination and make such notification available for public inspection at the same location where the Department made available preconstruction information and public comments relating to the source or modification.

 

3.14 Source Obligation.

A. Any owner or operator who constructs or operates a source or modification not in accordance with the application submitted pursuant to this section or with the terms of any approval to construct, or any owner or operator of a source or modification subject to this section who commences construction after the effective date of these regulations without applying for and receiving approval hereunder, shall be subject to appropriate enforcement action.

B. Approval to construct shall become invalid if construction is not commenced within 18 months after receipt of such approval, if construction is discontinued for a period of 18 months or more, or if construction is not completed within a reasonable time. The Department may extend the 18-month period upon a satisfactory showing that an extension is justified. This provision does not apply to the time period between construction of the approved phases of a phased construction project; each phase must commence construction within 18 months of the projected and approved commencement date.

C. Approval to construct shall not relieve any owner or operator of the responsibility to comply fully with applicable provisions of any other requirements under local or Federal law.

D. At such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 1980 on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then the requirements or paragraphs 3.7 through 3.14 of this section shall apply to the source or modification as though construction had not yet commenced on the source or modification.

 

 

3.15 Innovative Control Technology.

A. An owner or operator of a proposed major stationary source or major modification may request the Department in writing no later than 30 days after the close of the public comment hearing to approve a system of innovative control technology.

B. The Department shall, with the consent of the Governor of Delaware, determine that the source or modification may employ a system of innovative control technology, if:

(1) The proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function;

(2) The owner or operator agrees to achieve a level of continuous emissions reduction equivalent to that which would have been required under paragraph 3.7B by a date specified by the Department. Such date shall not be later than four years from the time of startup or seven years from permit issuance;

(3) The source or modification would meet the requirements of paragraphs 3.7 and 3.8 based on the emissions rate that the stationary source employing the system of innovative control technology would be required to meet on the date specified by the Department;

(4) The source or modification would not be before the date specified by the Department:

(i) Cause or contribute to a violation of an applicable national ambient air quality standard; or

(ii) Impact any Class I area; or

(iii) Impact any area where an applicable increment is known to be violated; and

(5) All other applicable requirements including those for public participation have been met.

C. The Department shall withdraw any approval to employ a system of innovative control technology made under this section, if:

(1) The proposed system fails before the specified date to achieve the required continuous emissions reduction rate; or

(2) The proposed system fails before the specified date so as to contribute to an unreasonable risk to public health, welfare, or safety; or

(3) The Department decides at any time that the proposed system is unlikely to achieve the required level of control or to protect the public health, welfare, or safety.

D. If a source or modification fails to meet the required level of continuous emission reduction within the specified time period or the approval is withdrawn in accordance with paragraph 3.15C, the Department may allow the source or modification up to an additional three years to meet the requirement for the application of best available control technology through use of a demonstrated system of control.

 

 

Division of Air & Waste Management

Air Quality Management Section

Statutory Authority: 7 Delaware Code,

Chapter 60 (7 Del.C. Ch. 60)

 

REGISTER NOTICE

 

1. TITLE OF THE REGULATIONS:

Amendment to Regulation 31 and its plan for implementation

 

2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES:

To amend Regulation 31 (Inspection and Maintenance Program) as follows:

1. To extend the new model year exemption for the exhaust idle test from 3 years to 5years.

2. To revise the procedure of the exhaust idle test for model year vehicles 1981 and newer, whereby the new procedure would test vehicles at an engine speed of normal idle and 2500 rpms, and;

3. To amend Section 3 (c) (1) of the Regulation to specify the VMASTM dynamometer procedure as the method of evaluating the I/M program.

4. To add a new section to the regulation, titled Clean Screening whose provisions would allow exempting vehicles normally required to be tested for exhaust and evaporative emissions when those vehicles are at a inspection facility and the wait time for vehicles at the at end of the testing queue is 90 minutes or greater. The new section describes the model years eligible for the "clean screen exemption". The clean screen exemption is given to vehicles categorized by model and model year that have passed vehicle exhaust emissions inspections in the State of Colorado.

To amend the Plan for Implementation of Regulation 31 as follows:

To revise the performance standard modeling to reflect the change in the new idle test procedure

 

3. POSSIBLE TERMS OF THE AGENCY ACTION:

N/A

 

4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT:

 

5. OTHER REGULATIONS THAT MAY BE AFFECTED BY THE PROPOSAL:

None

 

6. NOTICE OF PUBLIC COMMENT:

Public Hearing is on April 13, 1999, 6 PM, Richardson and Robbins Auditorium, 89 Kings Highway, Dover

 

PREPARED BY:

Philip A. Wheeler 739-4791, 2/22/99

 

REGULATION NO. 31

 

LOW ENHANCED

INSPECTION AND MAINTENANCE

PROGRAM

 

PROPOSED

SIP REVISION

 

Prepared by the Delaware Department of Natural Resources and Environmental Control

Division of Air and Waste Management

Air Quality Management Section

2/22/99

 

Table of Contents

 

Section Page

Applicability 1

Low Enhanced I/M Performance Standard 2

Network Type And Program Evaluation 3

Test Frequency And Convenience 7

Vehicle Coverage 8

Test Procedures And Standards 10

Waivers And Compliance Via Diagnostic

Inspection 13

Motorist Compliance Enforcement 15

Enforcement Against Operators And

Motor Vehicle Technicians 16

Improving Repair Effectiveness 17

Compliance With Recall Notices 17

On-Road Testing 17

Implementation Deadlines 17

 

Amended Appendices

Appendix 3 (c) (2) VMASTM Test Procedures

Appendix 5(f) Clean Screening Vehicle Exemption

Appendix 6 (a) Idle Emissions Test Procedures

 

* Please note: The above page numbers refer to the original document and not the Register of Regulations.

Proposed change: Regulation 31 is proposed to be changed by revising one existing provision and adding four new provisions as follows: changing the new model year exemption for the exhaust emission test from 3 years to 5 years; requiring 1981 and newer model year vehicles to undergo a new idle test procedure which will be the two speed idle test; to add a new exemption of vehicle criteria that is referred in the regulation as clean screening; amending Section 3 (c) (2): Transient mass emission test procedure which is reserved in the existing regulation.

 

Low enhanced Inspection and Maintenance Program

Regulation No. 31

 

Section 1 - Applicability.

(a) This program shall be known as the "Low enhanced Inspection and Maintenance Program" or "LEIM Program", and shall be identified as such in the balance of this regulation.

(b) This regulation shall apply to New Castle and Kent Counties.

(c) This regulation shall apply to all vehicles registered in the following postal ZIP codes:

19701 19702 19703 19706 19707 19708

19709 19710 19711 19712 19713 19714

19715 19716 19717 19718 19720 19730

19731 19732 19733 19734 19735 19936

19703 19938 19800 19801 19802 19803

19804 19805 19806 19807 19808 19809

19810 19850 19890 19894 19896 19897

19898 19899 19901 19902 19903 19904

19934 19936 19938 19942 19943 19946

19952 19953 19954 19955 19960 19961

19962 19963* 19964 19977 19979 19980

 

* Note: If vehicles registered in Sussex County and with this ZIP code, this regulation is not applicable.

(d) The legal authority for implementation of the LEIM Program is contained in 7 Del.C. Chapter 60, §6010(a). Appendix 1(d) contains the letter from the State of Delaware, Secretary of the Department to EPA Regional Administrator, W. Michael McCabe committing to continue the I/M program through the enforcement of this regulation out to the attainment year and remain in effect until the applicable area is redesignated to attainment status and a Maintenance Plan is approved by the EPA. 7 Del. C. Chapter 60, §6010(a) does not have a sunset date.

(e) Requirements after attainment.

This LEIM program shall remain in effect if the area is redesignated to attainment status, until approval of a Maintenance Plan, under Section 175A of the Clean Air Act, which demonstrates that the area can maintain the relevant standard for the maintenance period (10 years) without benefit of the emission reductions attributable to the continuation of the LEIM program.

(f) Definitions

Alternative Fuel Vehicle: Any vehicle capable of operating on one or more fuels, none of which are gasoline, and which is subject to emission testing to the same stringency as a similar gasoline fueled vehicle.

 

Certified Repair Technician: Automotive repair technician certified jointly by the College (or other training agencies or training companies approved by the Department) and the Department of Natural Resources and Environmental Control and the Division of Motor Vehicles as having passed a recognized course in emission repair. (See Appendix 7 (a))

 

Certified Manufacturer Repair Technician: Automotive repair technician certified by the Department of Natural Resources and Environmental Control and the Division of Motor Vehicles, as trained in doing emission repairs on vehicles of a specific manufacturer. (See Appendix 7 (a))

 

College: The Delaware Technical and Community College

 

Compliance Rate: The percentage of vehicles out of the total number required to be inspected in any given year that have completed the inspection process to the point of receiving a final certificate of compliance or a waiver.

 

Director: The Director of the Division of Motor Vehicles in the Department of Public Safety.

 

Division: The Division of Motor Vehicles in the Department of Public Safety of the State of Delaware.

 

Department: The Department of Natural Resources and Environmental Control of the State of Delaware.

 

Emissions: Products of combustion and fuel evaporation discharged into the atmosphere from the tailpipe, fuel system or any emission control component of a motor vehicle.

 

Emissions Inspection Area: The emissions inspection area shall constitute the entire counties of New Castle and Kent.

 

Emissions Standard(s): The maximum concentration of hydrocarbons (HC), carbon monoxide (CO) or oxides of nitrogen (NOX), or any combination thereof, allowed in the emissions from a motor vehicle as established by the Secretary, as described in this regulation.

 

Failed Motor Vehicle: Any motor vehicle which does not comply with applicable exhaust emission standards, evaporative system function check requirements and emission control device inspection requirements during the initial test or any retest.

Flexible Fuel Vehicle: Any vehicle capable of operating on more than one fuel type, one of which includes gasoline, which must be tested to program standards for gasoline. This is in contrast to alternative fuel vehicles.

 

Going Concern: An individual or business with a primary, full time interest in the repair of motor vehicles.

 

GPM: Grams per mile (grams of emissions per mile of travel).

 

Manufacturer's Gross Vehicle Weight: The vehicle gross weight as designated by the manufacturer as the total weight of the vehicle and its maximum allowable load.

 

Model Year: The year of manufacture of a vehicle as designated by the manufacturer, or the model year designation assigned by the Division to a vehicle constructed by other than the original manufacturer.

 

Motor Vehicle: Includes every vehicle, as defined in 21 Del. Code, Section 101, which is self-propelled, except farm tractors, off-highway vehicles, motorcycles and mopeds.

 

Motor Vehicle Technician: A person who has completed an approved emissions inspection equipment training program and is employed or under contract with the State of Delaware.

 

New Motor Vehicle: A motor vehicle of the current or preceding model year that has never been previously titled or registered in this or any other jurisdiction and whose ownership document remains as a manufacturer's certificate of origin, unregistered vehicle title.

 

Official Inspection Station: All official Motor Vehicle Inspection Stations located in New Castle and Kent counties, operated by, or under the auspices of, the Division.

 

Operator: An employee or contractor of the State of Delaware performing any function related to motor vehicle inspections in the State.

 

Performance Standard: The complete matrix of emission factors derived from the analysis of the model program as defined in 40 CFR Part 51 Subpart S, by using EPA's computerized Mobile5a emission factor model. This matrix of emission factors is dependent upon various speeds, pollutants and evaluation years.

 

PFI: The Plan for Implementation of Regulation No. 31, which can be also considered to be the technical support document for that regulation.

Reasonable Cost: The actual cost of parts and labor which is necessary to cause the failed motor vehicle to comply with applicable emissions standards or which contributes towards compliance. It shall not include the cost of those repairs determined by the Division to be necessary due to the alteration or removal of any part of the emission control system of the motor vehicle, or due to any damage resulting from the use of improper fuel in the failed motor vehicle.

 

Registration Fraud: Any attempt by a vehicle owner or operator to circumvent the requirements to properly and legally register any motor vehicle in the State of Delaware.

 

Secretary: The Secretary of the Department of Natural Resources and Environmental Control.

 

Stringency Rate: The tailpipe emission test failure rate expected in an I/M program among pre-1981 model year passenger cars or pre-1984 light-duty trucks.

 

Vehicle Type: EPA classification of motor vehicles by weight class which includes the terms light duty and heavy duty vehicle.

 

Waiver: An exemption issued to a motor vehicle that cannot comply with the applicable exhaust emissions standard and cannot be repaired for a reasonable cost.

 

Waiver Rate: The number of vehicles receiving waivers expressed as a percentage of vehicles failing the initial exhaust emission test.

 

Section 2 -Low Enhanced I/M Performance Standard.

(a) On-road testing:

The performance standard shall include on-road testing of at least 0.5% of the subject vehicle population, or 20,000 vehicles whichever is less, as a supplement to the periodic inspection required in paragraph (a) of Section 3. The requirements are contained in Section 12 of this regulation.

(b) On-board diagnostics (OBD): [Reserved]

 

Section 3 - Network Type And Program Evaluation.

(a) The LEIM Program shall be a test-only, centralized system operated in New Castle and Kent Counties by the State of Delaware's Division of Motor Vehicles.

(1) Network type:

Centralized testing.

(2) Start date:

January 1, 1995

(3) Test frequency:

Biennial testing.

(4) Model year coverage:

Idle and two-speed idle test of all covered vehicles: Model years 1968 and newer for light duty vehicles and model years 1970 and newer for light duty trucks with the exception of the five most recent model years.

(5) Vehicle type coverage:

Light duty vehicles, and light duty trucks, rated up to 8,500 pounds Gross Vehicle Weight Rating (GVWR).

(6) Exhaust emission test type:

(i) Idle test of all covered vehicles: Model years 1968 and newer through 1980 for light duty vehicles and model years 1970 and newer through 1980 for light duty trucks according to the requirements found in Appendix 6 (a).

(ii) Two-speed idle test (vehicle engine at idle and 2500 revolutions per minute (rpm) of all covered vehicles model years 1981 and newer according to the requirements found in Appendix 6 (a).

(7) Emission standards:

(Emissions limits according to model year may be found in Appendix 3 (a) (7) )

Maximum exhaust dilution measured at no less than 6% CO plus carbon dioxide (CO2) on all tested vehicles (as described in Appendix B of the EPA Rule).

(8) Emission control device inspections:

Visual inspection of the catalyst on all 1975 and later model year vehicles with the exception of new motor vehicles registered in Delaware.

(9) Evaporative system function checks:

Evaporative system integrity (pressure) test on 1975 and later model year vehicles with the exception of the five most recent model years.

(10) Stringency:

A 20% emission test failure rate among pre-1981 model year vehicles.

(11) Waiver rate:

A 3% rate, as a percentage of failed vehicles.

(12) Compliance rate:

A 96% compliance rate.

(13) Evaluation date:

Low enhanced I/M program areas subject to the provisions of this paragraph shall be shown to obtain the same or lower emission levels as the model program described in this paragraph by 2000 for ozone nonattainment areas and 2001 for CO nonattainment areas, and for severe and extreme ozone nonattainment areas, on each applicable milestone and attainment deadline, thereafter. Milestones for NOX shall be the same as for ozone..

(b) On-board diagnostics (OBD): [Reserved]

(c) Program Evaluation

(1) Program evaluation shall be used in determining actual emission reductions achieved from the LEIM program for the purposes of satisfying the requirements of sections 182(g)(1) and 182(g)(2) of the Clean Air Act, relating to reductions in emissions and compliance demonstration.

(2) Transient mass emission test procedure: Reserved. A randomly selected number of subject vehicles that are due to be tested according to the requirements of this regulation will be required to undergo, in addition to the required tests, an alternative test porcedure to provide information for the purpose of evaluating the overall effectiveness of the Low Enhanced Inspection and Maintenance Program. The test is referred to as the VMASTM method. See Appendix 3 (c) (2).

 

Section 4 - Test Frequency And Convenience.

(a) The LEIM Program shall be operated on a biennial frequency, which requires an inspection of each subject vehicle at least once every two years, regardless of any change in vehicle status, at an official inspection station. New vehicles must be presented for LEIM program testing not more than 36 60 months after initial titling.

(b) This system of inspections and registration renewals allows the additional benefit of coupling both enforcement systems together. Local, County and State police shall continue to enforce registration requirements, which shall require inspection in order to come into compliance . Requirements of inspection of motor vehicles before receiving a vehicle registration is found in the Delaware Criminal and Traffic manual Title 21 Chapter 21. Violations of registration provisions and the resulting penalties are found in the Delaware Criminal and Traffic Law Manual, Title 21, Chapter 21. One 60 day extension shall be available to allow testing and repair.(See Appendix 4 (a) for the citations)

(c) Stations shall be open to the public at hours designed for maximum public convenience. These hours shall equal a minimum of 42 hours per week. Stations shall remain open continuously through the designated hours, and every vehicle presented for inspection during these hours shall receive a test prior to the daily closing of the station. Testing hours shall be Monday and Tuesday: 8:00 am to 4:30 pm, Wednesday: 12 noon to 8 pm, Thursday and Friday 8:00 am to 4:30 pm. These hours may be subject to change by the State. Official inspection stations shall adhere to regular, extended testing hours and shall test any subject vehicle presented for a test during its test period.

 

Section 5 - Vehicle Coverage.

(a) Subject Vehicles

The LEIM program is based on coverage of all 1968 and later model year, gasoline powered, light duty vehicles and 1970 and later model year light duty trucks up to 8,500 pounds GVWR (with the exception of the five most recent model years). The following is the complete description of the LEIM program:

Vehicles registered or required to be registered within the emission inspection area, and fleets primarily operated within the emissions inspection area boundaries and belonging to the covered model years and vehicle classes comprise the subject vehicles, which are as follows: (See Appendix 5 (a) for DMV Out of State Renewals)

(1) All vehicles titled/registered in Delaware from model year 1968 light duty vehicles and 1970 and later model year light duty trucks and whose vehicle type are subject to the applicable test schedule.

(2) All subject fleet vehicles shall be inspected at an official inspection station.

(3) Subject vehicles which are registered in the program area but are primarily operated in another LEIM area shall be tested, either in the area of primary operation, or in the area of registration. Alternate schedules may be established to permit convenient testing of these vehicles (e.g., vehicles belonging to students away at college should be rescheduled for testing during a visit home).

(4) Vehicles which are operated on Federal installations located within an emission inspection shall be tested, regardless of whether the vehicles are registered in the emission inspection jurisdiction. This requirement applies to all employee-owned or leased vehicles (including vehicles owned, leased, or operated by civilian and military personnel on Federal installations) as well as agency-owned or operated vehicles, except tactical military vehicles, operated on the installation. This requirement shall not apply to visiting agency, employee, or military personnel vehicles as long as such visits do not exceed 60 calendar days per year. In areas without test fees collected in the lane, arrangements shall be made by the installation with the LEIM program for reimbursement of the costs of tests provided for agency vehicles, at the discretion of the Director. The installation manager shall provide documentation of proof of compliance to the Director. The documentation shall include a list of subject vehicles and shall be updated periodically, as determined by the Director, but no less frequently than each inspection cycle. The installation shall use one of the following methods to establish proof of compliance:

(i) Presentation of a valid certificate of compliance from the LEIM program, from any other LEIM program at least as stringent as the LEIM program described herein, or from any program deemed acceptable by the Director.

(ii) Presentation of proof of vehicle registration within the geographic area covered by the LEIM program, except for any Inspection and Maintenance program whose enforcement is not through registration denial.

(iii) Another method approved by the Director.

(5) Vehicles powered solely by a "clean fuel" such as compressed natural gas, propane, alcohol and similar non-gasoline fuels shall be required to report for inspection to the same emission levels as gasoline powered cars until standards for clean fuel vehicles become available and are adopted by the State.

(6) Vehicles able to be powered by more than one fuel, such as compressed natural gas and/or gasoline, must be tested and pass emissions standards for all fuels when such standards have become adopted by the Department..

(b) Exemptions

The following motor vehicles are exempt from the provisions of this regulation:

(1) Vehicles manufactured and registered as Kit Cars

(2) Tactical military vehicles used exclusively for military field operations.

(3) All motor vehicles with a manufacturer's gross vehicle weight over 8,500 pounds.

(4) All motorcycles and mopeds

(5) All vehicles powered solely by electricity generated from solar cells and/or stored in batteries.

(6) Non-road sources, or vehicles not operated on public roads

(7) Vehicles powered solely by Diesel fuel.

(c) Any exemption from inspection requirements issued to a vehicle under this Section shall not have an expiration date and shall expire only upon a change in the vehicle status for which the exemption was initially granted.

(d) Fleet owners are required to have all non-exempted vehicles under their control inspected at an official inspection station during regular station hours.

(e) Vehicles shall be pre-inspected prior to the emission inspection, and shall be prohibited from testing should any unsafe conditions be found. These unsafe conditions include, but are not limited to significant exhaust leaks, and significant fluid leaks. The Division and the Department shall not be responsible for major vehicle component failures during the test, of parts which were deficient or excessively worn prior to the start of the test.

(f) Clean Screening: Vehicle types (name of manufacturer, model, model year and engine type) that are subject to this regulation and have met clean emissions criteria developed by the Division of Motor Vehicles, may be exempt from the two speed idle exhaust emissions test and the evaporative emissions test (except for a fuel cap pressure test) if warranted by queue conditions at the inspection lanes. Each Delaware inspection lane shall independently control clean screen activation. Clean screen mode shall occur when the inspection lane queue exceeds 60 minutes. The Lane Manager (or designee) must advise inspection personnel to activate the process. Once a queue reduction to less than 60 minutes takes place, reversion to the normal testing protocol shall occur. (See Appendix 5(f) Clean Screening Vehicle Exemption)

Section 6 -Test Procedures And Standards.

(a) Test procedure requirements. (The test procedure use to perform this test shall conform to the requirements shown in Appendix 6 (a)).

(1) Initial tests (i.e., those occurring for the first time in a test cycle) shall be performed without repair or adjustment at the inspection facility, prior to the test.

(2) An official test, once initiated, shall be performed in its entirety regardless of intermediate outcomes except in the case of invalid test condition or unsafe conditions.

(3) Tests involving measurements shall be performed with equipment that has been calibrated according to the quality control procedures established by the Department

(4) Vehicles shall be rejected from testing, as covered in this section, if the exhaust system is missing or leaking, or if the vehicle is in an unsafe condition for testing.

(5) After an initial failure of any portion of any emission test in the LEIM program, all vehicles shall be retested without repairs being performed. This retest shall be indicated on the records as the second chance test. After failure of the second chance test, prior to any subsequent retests, proof of appropriate repairs must be submitted indicating the type of repairs and parts installed (if any). This shall be done by completing the "Vehicle Emissions Repair Report Form" (Appendix 6 (a) (5) which will be distributed to anyone failing the emissions test.)

(6) Idle testing using BAR 90 emission analyzers (analyzers that have been certified by the California Bureau of Automotive Repair) shall be performed on all 1968 through current (minus three years five years) model year vehicles in New Castle and Kent Counties.

(7) Emission control device inspection.

Visual emission control device checks shall be performed through direct observation or through indirect observation using a mirror. These inspections shall include a determination as to whether each subject device is present.

(8) Evaporative System Integrity Test. Vehicles shall fail the evaporative system integrity test(s) if the system(s) cannot maintain the equivalent pressure of eight inches of water using USEPA approved fast pass methodology. Additionally, vehicles shall fail evaporative system integrity testing if the canister is missing or obviously disconnected, the hoses are crimped off, or the fuel cap is missing. Evaporative system integrity test procedure is found in See Appendix 6 (a) (8) .

(9) On-board diagnostic checks.

[Reserved]

(b) Test standards

(1) Emissions standards.

HC, CO, CO+CO2 (or CO2 alone), emission standards shall be applicable to all vehicles subject to the LEIM program and repairs shall be required for failure of any standard regardless of the attainment status of the area.

(i) Steady-state short tests.

Appropriate model program standards shall be used in idle testing of vehicles from model years 1968 light duty vehicles and model years 1970 light duty trucks and newer.

(2) Visual equipment inspection standards performed by the Motor Vehicle Technician.

(i) Vehicles shall fail visual inspections of subject emission control devices if such devices are part of the original certified configuration and are found to be missing, modified, disconnected, or improperly connected.

(3) On-board diagnostics test standards.

[Reserved].

(c) Applicability.

In general, section 203(a)(3)(A) of the Clean Air Act prohibits altering a vehicle's configuration such that it changes from a certified to a non-certified configuration. In the inspection process, vehicles that have been altered from their original certified configuration are to be tested by the Motor Vehicle Technician in the same manner as other subject vehicles.

(1) Vehicles with engines of a model year older than the chassis model year shall be required to pass the standards commensurate with the chassis model year.

(2) Vehicles that have been switched from an engine of one fuel type to another fuel type that is subject to the LEIM program (e.g., from a diesel engine to a gasoline engine) shall be subject to the test procedures and standards for the current fuel type, and to the requirements of paragraph (c)(1) of this section.

(3) Vehicles that are switched to a fuel type for which there is no certified configuration shall be tested according to the most stringent emission standards established for that vehicle type and model year. Emission control device requirements may be waived if the Division determines that the alternatively fueled vehicle configuration would meet the new vehicle standards for that model year without such devices.

(4) Vehicles converted to run on alternate fuels, frequently called a dual-fuel vehicle, shall be tested and required to pass the most stringent standard for each fuel type.

(5) Mixing vehicle classes (e.g., light-duty with heavy-duty) and certification types (e.g., California with Federal) within a single vehicle configuration shall be considered tampering.

 

Section 7 - Waivers And Compliance Via Diagnostic Inspection.

(a) Waiver issuance criteria.

(1) Motorists shall expend a reasonable cost, as defined in Section 1 of this Regulation in order to qualify for a waiver. Effective January 1, 1997 for vehicles registered in New Castle County and July 1, 1997 for vehicles registered in Kent County, in order to qualify for waiver repairs on any 1981 or later model year vehicle shall be performed by a certified repair technician or a certified manufacturer repair technician, as defined in Section 1 of this regulation, and must have been appropriate to correct the emission failure. Repairs of primary emission control components may be performed by non-technicians (e.g., owners) to apply toward the waiver limit. The waiver would apply to the cost of parts for the repair or replacement of the following list of emission control component systems: Air induction system (air filter, oxygen sensor), catalytic converter system (convertor, preheat catalyst), thermal reactor, EGR system (valve, passage/hose, sensor) PCV System, air injection system (air pump, check valve), ignition system (distributor, ignition wires, coil, spark plugs). The cost of any hoses, gaskets, belts, clamps, brackets or other emission accessories directly associated with these components may also be applied to the waiver limit.

(2) Any available warranty coverage shall be used to obtain needed repairs before expenditures can be counted towards the cost limits in paragraph (a)(4) of this section. The operator of a vehicle within the statutory age and mileage coverage under section 207(b) of the Clean Air Act shall present a written denial of warranty coverage from the manufacturer or authorized dealer for this provision to be waived for approved tests applicable to the vehicle.

(3) Receipts shall be submitted for review to further verify that qualifying repairs were performed.

(4) A minimum expenditure for repairs of $75 for pre-81 model year vehicles or a minimum expenditure of $200 for 1981 model year and newer vehicles shall be spent in order to qualify for a waiver. The minimum repair cost for 1981 and newer vehicles shall increase to $450 starting January 1, 2000. For each subsequent year, the $450 minimum expenditure shall be adjusted in January of that year by the percentage, if any, by which the Consumer Price Index for the preceding calendar year differs from the Consumer Price Index for 1989.

(5) The issuance of a waiver applies only to those vehicles failing an exhaust emission tests. No waivers are granted to vehicles failing the evaporative emission integrity test.

(6) Waivers shall be issued by the Division Director only after:

(i) a vehicle has failed a retest for only the exhaust emissions portions of the program, performed after all qualifying repairs have been completed;

(ii) and a minimum of 10% improvement (reduction) in hydrocarbons (HC) and carbon monoxide (CO) has resulted from those repairs. This requirement [Section 7 (a) (6) (ii)] will cease to be in effect starting January 1, 2000.

(7) Qualifying repairs include repairs of primary emission control components performed within 90 days of the test date.

(8) Waivers issued pursuant to this regulation are valid until the date of current registration expiration.

(9) Waivers will not be issued to vehicles for tampering-related repairs. The cost of tampering-related repairs shall not be applicable to the minimum expenditure in paragraph (a)(4) of this section. The Director will issue exemptions for tampering-related repairs if it can be verified that the part in question or one similar to it is no longer available for sale

(b) Compliance via diagnostic inspection.

Vehicles subject to an emission test at the cutpoints shown in Appendix 3 (a)(7) of Regulation 31 may be issued a certificate of compliance without meeting the prescribed emission cutpoints, if, after failing a retest on emissions, a complete, documented physical and functional diagnosis and inspection performed by a Delaware Certified Emission Repair Technician shows that no additional emission-related repairs are needed.

(c) (1) In order to meet the requirements of the EPA Rule, the State commits to maintaining a waiver rate equal to or less than 3% of the failed vehicles.

(2) The Secretary shall take corrective action to lower the waiver rate should the actual rate reported to EPA be above 3%.

(3) Actions to achieve the 3% waiver rate, if required, shall include measures such as not issuing waivers on vehicles less than 6 years old, raising minimum expenditure rates, and limiting waivers to once every four years. If the waiver rate cannot be lowered to levels committed to in the SIP, or if the State chooses not to implement measures to do so, then the Secretary shall revise the I/M emission reduction projections in the SIP and shall implement other LEIM program changes needed to ensure the performance standard is met.

 

Section 8 - Motorist Compliance Enforcement.

(a) Registration denial.

Registration denial enforcement (See Appendix 8 (a), the Systems Requirement Definition for the Registration Denial process) is defined as rejecting an application for initial registration or re-registration of a used vehicle (i.e., a vehicle being registered after the initial retail sale and associated registration) unless the vehicle has complied with the LEIM program requirement prior to granting the application. This enforcement is the express responsibility of the Division with the assistance of police agencies for on road inspection and verification. The law governing the registration of motor vehicles is found in the Delaware Criminal and Traffic Law Manual, Title 21, Chapter 21. Pursuant to section 207(g)(3) of the Act, nothing in this section shall be construed to require that new vehicles shall receive emission testing prior to initial retail sale. In designing its enforcement program, the Director shall:

(1) Provide an external, readily visible means of determining vehicle compliance with the registration requirement to facilitate enforcement of the LEIM program. This shall be in the form of a window sticker and tag sticker which clearly indicate the vehicles compliance status and next inspection date;

(2) Adopt a schedule of biennial testing that clearly determines when a vehicle shall have to be inspected to comply prior to (re)registration;

(3) Design a registration denial system which features the electronic transfer of information from the inspection lanes to the Division's Data Base, and monitors the following information:

(i) Expiration date of the registration;

(ii) Unambiguous vehicle identification information; and

(iii) Whether the vehicle received either a waiver or a certificate of compliance, and;

(iv) The Division's unique windshield certificate identification number to verify authenticity; and

(v) The Division shall finally check the inspection data base to ensure all program requirements have been met before issuing a vehicle registration.

(4) Ensure that evidence of testing is available and checked for validity at the time of a new registration of a used vehicle or registration renewal.

(5) Prevent owners or lessors from avoiding testing through manipulation of the title or registration system; title transfers do not re-start the clock on the inspection cycle.

(6) Limit and track the use of time extensions of the registration requirement to only one 60 day extension per vehicle to prevent repeated extensions.

(b) (1) (i) Owners of subject vehicles must provide valid proof of having received a passing test or a waiver to the Director's representative in order to receive registration from the Division.

(ii) State and local enforcement branches, such as police agencies, as part of this program, shall cite motorist who do not visibly display evidence of compliance with the registration and inspection requirements.

(iii) Fleet and all other registered applicable vehicle compliance shall be assured through the regular enforcement mechanisms concurrent with registration renewal, on-road testing and parking lot observation. Fleets shall be inspected at official inspection stations.

(iv) Federal fleet compliance shall be assured through the cooperation of the federal fleet managers as well as also being subject to regular enforcement operations of the Division.

 

Section 9 - Enforcement Against Operators And Motor Vehicle Technicians.

(a) Imposition of penalties

The State of Delaware shall continue to operate the LEIM program using State of Delaware Employees for all functions. Should enforcement actions be required for violations of program requirements, the Agreement between State of Delaware Department of Public Safety Motor Vehicle Division and Council 81 of the American Federation of State, County and Municipal Employees, Section 8, Disciplinary Action, and, the State of Delaware Merit Rules, shall be adhered to in all matters. Applicable provisions of these documents are found in Appendix 9 (a).

(b) Legal authority.

(1) The Director shall have the authority to temporarily suspend station Motor Vehicle Technicians' certificates immediately upon finding a violation or upon finding the Motor Vehicle Technician administered emission tests with equipment which had a known failure and that directly affects emission reduction benefits, in accordance with the Agreement between State of Delaware Department of Public Safety Motor Vehicle Division and Council 81 of the American Federation of State, County and Municipal Employees, Section 8 Disciplinary Action.

(2) The Director shall have the authority to impose disciplinary action against the station manager or the Motor Vehicle Technician, even if the manager had no direct knowledge of the violation but was found to be careless in oversight of motor vehicle technicians or has a history of violations, in accordance with the Agreement between State of Delaware Department of Public Safety Motor Vehicle Division and Council 81 of the American Federation of State, County and Municipal Employees, and the State of Delaware Merit Rules. The lane manager shall be held fully responsible for performance of the motor vehicle technician in the course of duty.

 

Section 10 - Improving Repair Effectiveness.

A prerequisite for a retest shall be a completed repair form that indicates which repairs were performed. (See Section 6 (a) (5) of this Regulation).

 

Section 11 - Compliance With Recall Notices.

[Reserved]

 

Section 12 - On-Road Testing.

(a) Periodic random Delaware registered vehicle pullovers on Delaware highways will occur without prior notice to the public for on-road vehicle exhaust emission testing.

(b) Vehicles identified by the on-road testing portion of the LEIM program shall be notified of the requirement for an out-of-cycle emission retest , and shall have 30 days from the date of the notice to appear for inspection. Vehicles not appearing for a retest shall be out of compliance, and be liable for penalties under Title 21 of Delaware Criminal and Traffic Law Manual and the Division will take action to suspend the vehicle registration.

 

Section 13 - Implementation Deadlines.

All requirements related to the LEIM program shall be effective ten days after the Secretary's order has been signed and published in the State Register except for the following provisions that have been amended to this regulation:

Date of Implementation

(a) Five year new model

year exemption from the

idle and two speed idle tests September 1, 1999

(b) Two-speed idle test (vehicle

at idle and 2500 rpm)

of all covered vehicles model

years 1981 and newer November 1, 1999

(c) Clean Screen exemptions. January 1, 2000

(d) Program Evaluation using

VMASTM test procedure. January 1, 2000

 

This regulation supersedes the existing Regulation Numbers 26 and 33 for Kent and New Castle Counties effective ten days after the Secretary's order has been signed and published in the State Register.

 

PROPOSED AMENDED

APPENDIX 2 - (b)

 

INPUT AND OUTPUT FILES RELATING TO MOBILE5A ANALYSIS

MOBILE5A LOCAL INPUT SOURCES AND CALCULATIONS

RESULTS OF MODELLING ANALYSIS

AND CLEAN SCREEN ANALYSIS

 

This document may be reviewed during normal business hours (8:30 am - 4 pm) Monday through Friday at the Air Quality Management Section Office, 156 South State Street, Dover. For more information call Philip Wheeler at 302/739-4791

 

APPENDIX 3 (c) (2)

 

VMASTM TEST PROCEDURES

 

Proposed Amendment to Regulation 31

 

General Requirements

(1) Test Parameters. The following information shall be determined for the vehicle being tested and used to automatically select the dynamometer inertia, power absorption settings, and evaporative emission test parameters.

(i) Model Year

(ii) Manufacturer

(iii) Model name

(iv) Body style

(v) Number of cylinders

(vi) Engine displacement

Alternative computerized methods of selecting dynamometer test conditions, such as VIN de-coding, may be used.

(2) Ambient Conditions. The ambient temperature, absolute humidity, and barometric pressure shall be recorded continuously during the transient test, or as a single set of readings if taken less than 4 minutes prior to the transient driving cycle.

(3) Restart. If shut off, the vehicle shall be restarted as soon as possible before the test and shall be running at least 30 seconds prior to the transient driving cycle.

(4) During the entire VMASTM testing procedure the vehicle shall be operated by a certified Motor Vehicle Technician (herein called inspector) and the vehicle owner or operator shall be asked to wait in a specified area during the test.

 

Pre-inspection and Preparation

(1) Accessories. All accessories (air conditioning, heat, defogger, radio, automatic traction control if switchable, etc.) shall be turned off by the inspector, if necessary.

(2) Traction Control and Four-Wheel Drive (4WD). Vehicles with traction control systems that cannot be turned off shall not be tested on two wheel drive dynamometers. Vehicles with 4WD that cannot be turned off shall only be tested on 4WD dynamometers. If the 4WD function can be disabled, then 4WD vehicles may be tested on two wheel drive dynamometers.

(3) Leaks. The vehicle shall be inspected for exhaust leaks. Audio assessment while blocking exhaust flow, or measurement of carbon dioxide or other gases, shall be acceptable. Vehicles with leaking exhaust systems shall be rejected from testing.

(4) Operating Temperature. The vehicle temperature gauge, if equipped and operating, shall be checked to assess temperature. If the temperature gauge indicates that the engine is well below (less than 180(F) normal operating temperature, the vehicle shall not be fast-failed and shall get a second-chance emission test if it fails the initial test for any criteria exhaust component. Vehicles in overheated condition shall be rejected from testing.

(5) Tire Condition. Vehicles shall be rejected from testing if tire cords, bubbles, cuts, or other damage are visible. Vehicles shall be rejected that have space-saver spare tires on the drive axle. Vehicles may be rejected if they do not have reasonably sized tires. Vehicle tires shall be visually checked for adequate pressure level. Drive wheel tires that appear low shall be inflated to approximately 30 psi, or to tire side wall pressure, or manufacturer's recommendation. The tires of vehicles being tested for the purposes of program evaluation under §51.353(c) shall have their tires inflated to tire side wall pressure.

(6) Ambient Background. [RESERVED]

(7) Sample System Purge. [RESERVED]

 

Equipment Positioning and Settings

(1) Purge Equipment. If an evaporative system flow meter purge test is to be performed:

(i) The purge flow meter shall be connected in series between the evaporative canister and the engine.

(ii) All hoses disconnected for the test shall be reconnected after a purge flow test is performed.

(2) Roll Rotation. The vehicle shall be maneuvered onto the dynamometer with the drive wheels positioned on the dynamometer rolls. Prior to test initiation, the rolls shall be rotated until the vehicle laterally stabilizes on the dynamometer. Drive wheel tires shall be dried if necessary to prevent slippage during the initial acceleration.

(3) Cooling System. The use of a cooling system is optional when testing at temperatures below 50(F). Furthermore, the hood may be opened at the state's discretion. If a cooling system is in use, testing shall not begin until the cooling system is positioned and activated. The cooling system shall be positioned to direct air to the vehicle cooling system, but shall not be directed at the catalytic converter.

(4) Vehicle Restraint. Testing shall not begin until the vehicle is restrained. Any restraint system shall meet the requirements of the Code of Federal Regulations Title 40, §85.2226(a)(5)(vii). The parking brake shall be set for front wheel drive vehicles prior to the start of the test. The parking brake need not be set for vehicles that release the parking brake automatically when the transmission is put in gear.

(5) Dynamometer Settings. Dynamometer power absorption and inertia weight settings shall be automatically chosen from an EPA-supplied electronic look-up table which will be referenced based upon the vehicle identification information obtained in Code of Federal Regulations Title 40, §85.2221(a)(1). Vehicles not listed shall be tested using default power absorption and inertia settings in the latest version of the EPA I/M Look-up Table, as posted on EPA's web site: www.epa.gov/orcdizux/im.htm

(6) Exhaust Collection System. The exhaust collection system shall be positioned to insure complete capture of the entire exhaust stream from the tailpipe during the transient driving cycle. The system shall meet the requirements of §85.2226(b)(2) in the Code of Federal Regulations Title 40,.

 

 

Vehicle Conditioning

(1) Queuing Time. Not applicable

(2) Program Evaluation. Vehicles being tested for the purpose of program evaluation under Section 3 (c) (2) shall receive two full VMAS emission tests (i.e., a full 240 seconds each). Results from both tests and the test order shall be separately recorded in the test record. Emission scores and results provided to the motorist may be from either test.

(3) Discretionary Preconditioning.

 

(i) Any vehicle may be preconditioned by maneuvering the vehicle on to the dynamometer and driving the 94 to 239 second segment of the transient cycle in § 85.2221(e)(1) Code of Federal Regulations Title 40,. This method has been demonstrated to adequately precondition the vast majority of vehicles (SAE 962091). Other preconditioning cycles may be developed and used if approved by the Administrator of the USEPA.

(4) Second-Chance Purge Testing. Not applicable

 

Vehicle Emission Test Sequence

(1) Transient Driving Cycle. The vehicle shall be driven over the following cycle:

 

 

 

Table A

 

 

 

 

Time

Speed

Time

Speed

Time

Speed

Time

Speed

Time

Speed

Time

Speed

(sec)

(mph)

(sec)

(mph)

(sec)

(mph)

(sec)

(mph)

(sec)

(mph)

(sec)

(mph)

0

0.0

40

17.7

80

32.2

120

18.1

160

33.5

200

56.7

1

0.0

41

19.8

81

32.4

121

18.6

161

36.2

201

56.7

2

0.0

42

21.6

82

32.2

122

20.0

162

37.3

202

56.3

3

0.0

43

23.2

83

31.7

123

20.7

163

39.3

203

56.0

4

0.0

44

24.2

84

28.6

124

21.7

164

40.5

204

55.0

5

3.0

45

24.6

85

25.1

125

22.4

165

42.1

205

53.4

6

5.9

46

24.9

86

21.6

126

22.5

166

43.5

206

51.6

7

8.6

47

25.0

87

18.1

127

22.1

167

45.1

207

1.8

8

11.5

48

25.7

88

14.6

128

21.5

168

46.0

208

52.1

9

14.3

49

26.1

89

11.1

129

20.9

169

46.8

209

52.5

10

16.9

50

26.7

90

7.6

130

20.4

170

47.5

210

53.0

11

17.3

51

27.5

91

4.1

131

19.8

171

47.5

211

53.5

12

18.1

52

28.6

92

0.6

132

17.0

172

47.3

212

54.0

13

20.7

53

29.3

93

0.0

133

17.1

173

47.2

213

54.9

14

21.7

54

29.8

94

0.0

134

15.8

174

47.2

214

55.4

15

22.4

55

30.1

95

0.0

135

15.8

175

47.4

215

55.6

16

22.5

56

30.4

96

0.0

136

17.7

176

47.9

216

56.0

17

22.1

57

30.7

97

0.0

137

19.8

177

48.5

217

56.0

18

21.5

58

30.7

98

3.3

138

21.6

178

49.1

218

55.8

19

20.9

59

30.5

99

6.6

139

22.2

179

49.5

219

55.2

20

20.4

60

30.4

100

9.9

140

24.5

180

50.0

220

54.5

21

19.8

61

30.3

101

13.2

141

24.7

181

50.6

221

53.6

22

17.0

62

30.4

102

16.5

142

24.8

182

51.0

222

52.5

23

14.9

63

30.8

103

19.8

143

24.7

183

51.5

223

51.5

24

14.9

64

30.4

104

22.2

144

24.6

184

52.2

224

50.5

25

15.2

65

29.9

105

24.3

145

24.6

185

53.2

225

48.0

26

15.5

66

29.5

106

25.8

146

25.1

186

54.1

226

44.5

27

16.0

67

29.8

107

26.4

147

25.6

187

54.6

227

41.0

28

17.1

68

30.3

108

25.7

148

25.7

188

54.9

228

37.5

29

19.1

69

30.7

109

25.1

149

25.4

189

55.0

229

34.0

30

21.1

70

30.9

110

24.7

150

24.9

190

54.9

230

30.5

31

22.7

71

31.0

111

25.2

151

25.0

191

54.6

231

27.0

32

22.9

72

30.9

112

25.4

152

25.4

192

54.6

232

23.5

33

22.7

73

30.4

113

27.2

153

26.0

193

54.8

233

20.0

34

22.6

74

29.8

114

26.5

154

26.0

194

55.1

234

16.5

35

21.3

75

29.9

115

24.0

155

25.7

195

55.5

235

13.0

36

19.0

76

30.2

116

22.7

156

26.1

196

55.7

236

9.5

37

17.1

77

30.7

117

19.4

157

26.7

197

56.1

237

6.0

38

15.8

78

31.2

118

17.7

158

27.3

198

56.3

238

2.5

39

15.8

79

31.8

119

17.2

159

30.5

199

56.6

239

0.0

(sec)

(mph)

(sec)

(mph)

(sec)

(mph)

(sec)

(mph)

(sec)

(mph)

(sec)

(mph)

 

(2) Driving Trace. The inspector shall follow an electronic, visual depiction of the time/speed relationship of the transient driving cycle (hereinafter, the trace). The visual depiction of the trace shall be of sufficient magnification and adequate detail to allow accurate tracking by the inspector/driver and shall permit anticipation of upcoming speed changes. The trace shall also clearly indicate gear shifts as specified in paragraph (3) and Table B below.

(3) Shift Schedule. To identify gear changes for manual shift vehicles, the driving display presented to the inspector/driver shall be designed according to the following shift schedule and prominently display visual cues where the inspector/driver is required to change gears:

 

 

Table B

 

 

Shift Sequence

(gear)

Speed

(miles per hour)

Approximate Cycle

Time(seconds)

1 - 2

15

9.3

2 - 3

25

47.0

De-clutch

15

87.9

1 - 2

15

101.6

2 - 3

25

105.5

3 - 2

17.2

119.0

2 - 3

25

145.8

3 - 4

40

163.6

4 - 5

45

167.0

5 - 6

50

180.0

De-clutch

15

234.5

 

Gear shifts shall occur at the points in the driving cycle where the specified speeds are obtained. For vehicles with fewer than six forward gears the same schedule shall be followed with shifts above the highest gear disregarded.

Automatic shift vehicles with overdrive or fuel economy drive modes shall be driven in those modes.

(4) Speed Excursion Limits. Speed excursion limits shall apply as follows:

(i) The upper limit is 2 mph higher than the highest point on the trace within 1 second of the given time.

(ii) The lower limit is 2 mph lower than the lowest point on the trace within 1 second of the given time.

(iii) Vehicle speed excursions beyond tolerance limits given in items a. and b. above are acceptable provided that each such excursion is not more than 2 seconds in duration.

(iv) Speeds lower than those prescribed during accelerations are acceptable provided the vehicle is operated at maximum available power during such accelerations until the vehicle speed is within the excursion limits.

(v) [Reserved : Criteria that shall allow limited excursions of speed higher than the prescribed upper limit in paragraphs (i) through (iii) ]

(vi) A transient emissions test shall be void and the vehicle retested if the speed excursion limits prescribed by paragraphs (i) through (iii) are exceeded, except in the event that computer algorithms, developed by the Department, determine that the conditions of paragraphs (v) and (vi) are applicable. Tests may be aborted if the speed excursion limits are exceeded.

 

Proposed

APPENDIX 5(f)

 

CLEAN SCREENING VEHICLE EXEMPTION

 

BACKGROUND ON CLEAN SCREENING

 

Delaware plans to implement a clean screen program that combines the use of the low emitter profile model (LEP) with an expansion of model year exemptions from 3 year old and newer vehicles to 5 year old and newer vehicles. The LEP model uses data from Arizona's IM240 program to predict whether a vehicle will pass the test. Analysis of data from applying the LEP to Colorado's fleet indicate that up to half of the vehicles can be exempted without greatly impacting the emission benefits of the program. The model only requires an accurate vehicle identification number (VIN) to project emission characteristics.

The LEP would be used primarily a lane management tool to increase throughput during peak periods. Under this scenario, the LEP would be used only during peak periods to clean screen vehicles more than 5 years old. Vehicles flagged as clean screen candidates would receive the gas cap test and the safety inspection, but would be exempted from the exhaust emission and pressure test when in clean screen mode. Delaware expects that "clean screening" would be activated less than 40% of the time. During off-peak periods, all vehicles more than 5 years old would receive exhaust emission and tank pressure tests along with the gas cap and safety test. Figure one and Table A show the possible percentages of vehicle model years that would be

 

 

 

exempt under clean screening if queue conditions warranted.

 

Table A

Percent of Vehicles Eligible for Clean Screen When in Clean Screen Mode

 

 

Vehicle Age

Observed Clean Screen %

Assumed Clean Screen %

1

99.00%

100%

2

98.83%

100%

3

99.00%

99.00%

4

91.59%

88.00%

5

75.50%

77.00%

6

58.74%

66.00%

7

70.20%

55.00%

8

45.48%

44.00%

9

23.08%

33.00%

10

23.62%

22.00%

11

10.17%

11.00%

12 and older

0.65%

0.00%

1Based on Arizona IM240 data

 

The Division of Motor Vehicles will determine when and if any applicable vehicles are exempt under the clean screen program. Typically, applicable vehicles will be exempt if queue conditions result in a wait time at the lane of 60 minutes or more. However, there are factors in the program that will automatically prevent the clean screen exemption from being implemented. Specifically, a budget of the total number of the applicable vehicles that can be exempt under clean screen will be established for any one calendar year and therefore if that budget is exceeded, the clean screen exemption will not apply even when wait times are 60 minutes or longer.

 

 

 

 

APPENDIX 6 (a)

IIDLE EMISSIONS TEST PROCEDURES

Proposed Amendment

 

There are no changes to the single speed idle test procedure. This amendment only includes the addition of the two speed idle test cited in the body of the text of Regulation 31, Section 6 (a))

 

The on-site test inspection of motor vehicles uses the ESP FICS 4000 - Bar 90 computerized Emission Analyzer which will require minimal time to complete the inspection procedure.

 

GENERAL TEST PROCEDURES

 

1. If the inspection technician observes a vehicle having coolant, oil, excess smoke or fuel leaks or any other such defect that is unsafe to allow the emission test to be conducted the vehicle shall be rejected from the testing area. The inspection technician is prohibited from conducting the emissions test until the defects are corrected.

2. The vehicle transmission is to be placed in neutral gear if equipped with a manual transmission, or in park position if equipped with an automatic transmission. The hand or parking brake is to be engaged. If the parking brake is found to be defective, then wheel chocks are to be placed in front and/or behind the vehicle's tires.

3. The inspection technician advises the owner to turn off all vehicle accessories.

4. The inspection technician enters the vehicle registration number (tag) or the vehicle identification number into the BAR 90 system. This information is electronically transmitted to the Division of Motor Vehicle's database. The system will also identify for each vehicle entered into the BAR 90 system whether the vehicle is eligible for a clean screen exemption. Only under certain conditions determined by the vehicle services chief or his designee will those vehicles eligible for the clean screen exemption be excuse from any exhaust emissions test for the current two year test cycle. In no case shall the number of vehicles exempt in any one calendar year, under the clean screen procedures, exceed 40% of the total number of vehicles subject to the requirements of Regulation 31. The clean screen procedures or methodology is described in Appendix Y.

5. If the vehicle registration number is in the database, the following information will be transmitted to and verified by the inspection technician:

a. Vehicle make

b. Vehicle Year

c. Vehicle Model

d. Vehicle Body Style

e. Vehicle fuel type and

f. other related information

6. The inspection technician will verify this information and verify the last five characters of the Vehicle Identification Number (VIN) prior to beginning the emission test.

7. If the vehicle's identification number is not on the database, the R.L. Polk VIN Package shall be automatically accessed. This VIN package will return the following information to the inspection technician who, in turn will verify the returned information:

a. Vehicle make

b. Vehicle Year

c. Vehicle Model

d. Vehicle Body Style

e. Vehicle fuel type

8. The DMV System will identify and require an emission inspection on all eligible vehicles meeting the State's criteria for an emission inspection. Once the vehicle information has been verified and accepted, the system will prompt the inspection technician to place the analyzer test probe into the tailpipe. The technician connects the tachometer lead to the vehicle's spark plug and verifies that the idle RPM is within the specified range. If the RPM exceeds the allowed range the vehicle is rejected and not tested. The technician will insert the probe at least 8 inches into the exhaust pipe. Genuine dual exhaust vehicles will be tested with a dual exhaust probe. Once the probe has been placed into the exhaust pipe the test will begin. The test process is completely automatic, including the pass/fail decision.

9. If the vehicle has been identified as requiring a completed Vehicle Inspection Repair (VIRR) Report Form prior to reinspection, the inspection technician will review the form for completeness and, if applicable, record into the system the Certified Emission Repair Technician's (CERT) number or Certified Manufacturer's Repair Technician (CMRT) number before the retest.

 

TWO SPEED IDLE TEST PROCEDURES

 

1. Exhaust gas sampling algorithm. The analysis of exhaust gas concentrations will begin 10 seconds after the applicable test mode begins. Exhaust gas concentrations will be analyzed at a rate of two times per second. The measured value for pass/fail determinations will be a simple running average of the measurements taken over five seconds.

2. Pass/fail determinations. A pass or fail determination will be made for each applicable test mode based on a comparison of the applicable standards listed in Appendix 3 (a)(7) and the measured value for HC and CO. A vehicle will pass the test mode if any pair of simultaneous values for HC and CO are below or equal to the applicable standards. A vehicle will fail the test mode if the values for either HC or CO, or both, in all simultaneous pairs of values are above the applicable standards.

3. Void test conditions. The test will immediately end and any exhaust gas measurements will be voided if the measured concentration of CO plus CO2 (CO+ CO2) falls below six percent of the total concentration of CO plus CO2 or the vehicle's engine stalls at any time during the test sequence.

4. Multiple exhaust pipes. Exhaust gas concentrations from vehicle engines equipped with dual exhaust systems will be sampled accordingly.

5. The test will be immediately terminated upon reaching the overall maximum test time.

6. Test sequence.

(a) The test sequence will consist of a first-chance test and a second chance test as follows:

(i) The first-chance test will consist of an idle mode followed by a high-speed mode.

(ii) The second-chance high-speed mode, as described will immediately follow the first-chance high-speed mode. It will be performed only if the vehicle fails the first-chance test. The second-chance idle will follow the second chance high speed mode and be performed only if the vehicle fails the idle mode of the first-chance test.

(b) The test sequence will begin only after the following requirements are met:

(i) The vehicle will be tested in as-received condition with the transmission in neutral or park, the parking brake actuated (or chocked) and all accessories turned off. The engine shall appear to and is assumed to be at normal operating temperature.

(ii) The tachometer will be attached to the vehicle in accordance with the analyzer manufacturer's instructions.

(iii) The sample probe(s) will be inserted into the vehicle's tailpipe to a minimum depth of 8 inches. If the vehicle's exhaust system prevents insertion to this depth, a tailpipe extension will be used.

(iv) The measured concentration of CO plus CO2 (CO + CO2) will be greater than or equal to 6% of the total concentration.

(c) First-chance test and second-chance high-speed mode. The test timer will start (tt=0) when the conditions specified above are met. The first-chance test and second-chance high-speed mode will have an overall maximum test time of 390 seconds (tt=390). The first-chance test will consist of an idle mode following immediately by a high-speed mode. This is followed immediately by an additional second-chance high-speed mode, if necessary.

(d) First-chance idle mode. The mode timer will start (mt=0) when the vehicle engine speed is between 550 and 1300 rpm. If engine speed exceeds 1300 rpm or falls below 550 rpm, the mode timer will reset to zero and resume timing. The maximum idle mode length will be 30 seconds (mt=30) elapsed time. The pass/ fail analysis will begin after an elapsed time of 10 seconds (mt=10). A pass or fail determination will be made for the vehicle and the mode terminated as follows:

(i) The vehicle will pass the idle mode and the mode will be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), measured values are less or equal to the applicable standards listed in Appendix 3 (a)(7)

(ii) The vehicle will fail the idle mode and the mode will be terminated if the provisions of d (i) are not satisfied within an elapsed time of 30 seconds (mt=30).

(iii) The vehicle may fail the first-chance and second-chance test will be omitted if no exhaust gas concentration less than 1800 ppm HC is found by an elapsed time of 30 seconds (mt=30).

(e) First-chance and second-chance high-speed modes. This mode includes both the first-chance and second-chance high-speed modes, and follows immediately upon termination of the first-chance idle mode. The mode timer will reset (mt=0) when the vehicle engine speed is between 2200 and 2800 rpm. If engine speed falls below 2200 rpm or exceeds 2800 rpm for more than two seconds in one excursion, or more than six seconds over all excursions within 30 seconds of the final measured value used in the pass/fail determination, the measured value will be invalidated and the mode continued. If any excursion lasts for more than ten seconds, the mode timer will reset to zero (mt=0) and timing resumed. The minimum high-speed mode length will be determined as described under paragraphs (e) (i) and (ii) below. The maximum high-speed mode length will be 180 seconds (mt=180) elapsed time.

(i) Ford Motor Company and Honda vehicles. For 1981-1987 model year Ford Motor Company vehicles and 1984-1985 model year Honda Preludes, the pass/fail analysis will begin after an elapsed time of 10 seconds (mt=10) using the following procedure.

(A) A pass or fail determination, as described below, will be used, for vehicles that passed the idle mode, to determine whether the high-speed test should be terminated prior to or at the end of an elapsed time of 180 seconds (mt=180).

(I) The vehicle will pass the high-speed mode and the test will be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), the measured values are less than or equal to the applicable standards listed in Appendix 3 (a)(7).

(II) If at an elapsed time of 30 seconds (mt=30) the measured values are greater than the applicable standards listed in Appendix 3 (a)(7), the vehicle's engine will be shut off for not more than 10 seconds after returning to idle and then will be restarted. The probe may be removed from the tailpipe or the sample pump turned off if necessary to reduce analyzer fouling during the restart procedure. The mode timer will stop upon engine shut off (mt=30) and resume upon engine restart. The pass/fail determination will resume as follows after 40 seconds have elapsed (mt=40).

(III) The vehicle will pass the high-speed mode and the test will be immediately terminated if, at any point between an elapsed time of 40 seconds (mt=40) and 60 seconds (mt=60), the measured values are less than or equal to the applicable standards listed in Appendix 3 (a)(7).

(IV) The vehicle will pass the high-speed mode and the test will be immediately terminated if, at a point between an elapsed time of 60 seconds (mt=60) and 180 seconds (mt=180) both HC and CO emissions continue to decrease and measured values are less than or equal to the applicable standards listed in Appendix 3 (a)(7). (V) The vehicle will fail the high-speed mode and the test will be terminated if neither paragraphs (e) (i) (A) (III) or (e) (i) (A) (IV), above, are not satisfied by an elapsed time of 180 seconds (mt=180).

(B) A pass or fail determination will be made for vehicles that failed the idle mode and the high-speed mode terminated at the end of an elapsed time of 180 seconds (mt=180) as follows:

(I) The vehicle will pass the high-speed mode and the mode will be terminated at an elapsed time of 30 seconds (mt=30) if any measured values of HC and CO exhaust gas concentrations during the high-speed mode are less than or equal to the applicable standards listed in Appendix 3 (a)(7).

(II) Restart. If at an elapsed time of 30 seconds (mt=30) the measured values of HC and CO exhaust gas concentrations during the high-speed mode are greater than the applicable short test standards as described in Appendix 3 (a)(7), the vehicle's engine will be shut off for not more than 10 seconds after returning to idle and then will be restarted. The probe may be removed from the tailpipe or the sample pump turned off it necessary to reduce analyzer fouling during the restart procedure. The mode timer will stop upon engine shut off (mt=30) and resume upon engine restart. The pass/fail determination will resume as follows after 40 seconds (mt=40) have elapsed.

(III) The vehicle will pass the high-speed mode and the mode will be terminated at an elapsed time of 60 seconds (mt=60) if any measured values of HC and CO exhaust gas concentrations during the high-speed mode are less than or equal to the applicable standards listed in Appendix 3 (a)(7).

(IV) The vehicle will pass the high-speed mode and the test will be immediately terminated if, at a point between an elapsed time of 60 seconds (mt=60) and 180 seconds (mt=180) both HC and CO emissions continue to decrease and measured values are less than or equal to the applicable standards listed in Appendix 3 (a)(7).

(V) The vehicle will fail the high-speed mode and the test will be terminated if neither paragraphs (e) (i) (B) (I), (e) (i) (B) (III) or e (i) (B) (IV), above, is satisfied by an elapsed time of 180 seconds (mt=180).

(ii) All other light-duty vehicles. The pass/fail analysis for vehicles not specified in paragraph (e) (i), above, will begin after an elapsed time of 10 seconds (mt=10) using the following procedure.

(A) A pass or fail determination will be used for 1981 and newer model year vehicles that passed the idle mode, to determine whether the high-speed mode should be terminated prior to or at the end of an elapsed time of 180 seconds (mt=180). For pre-1981 model year vehicles, no high speed idle mode test will be performed.

(I) The vehicle will pass the high-speed mode and the test will be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), the measured values are less than or equal to the applicable standards listed in Appendix 3 (a)(7).

(II) The vehicle will pass the high-speed mode and the test will be immediately terminated if emissions continue to decrease after an elapsed time of 30 seconds (mt=30) and if, at any point between an elapsed time of 30 seconds (mt=30) and 180 seconds (mt=180), the measured values are less than or equal to the applicable standards listed in Appendix 3 (a)(7).

(III) The vehicle will fail the high-speed mode and the test will be terminated if neither the provisions of paragraphs (e) (ii)(A)(I) or (e) (ii)(A)(II), above, is satisfied.

(B) A pass or fail determination will be made for 1981 and newer model year vehicles that failed the idle mode and the high-speed mode terminated prior to or at the end of an elapsed time of 180 seconds (mt=180). For pre-1981 model year vehicles, the duration of the high speed idle mode will be 30 seconds and no pass or fail determination will be used at the high speed idle mode.

(I) The vehicle will pass the high-speed mode and the mode will be terminated at an elapsed time of 30 seconds (mt=30) if any measured values are less than or equal to the applicable standards listed Appendix 3 (a)(7).

(II) The vehicle will pass the high-speed mode and the test will be immediately terminated if emissions continue to decrease after an elapsed time of 30 seconds (mt=30) and if, at any point between an elapsed time of 30 seconds (mt=30) and 180 seconds (mt=180), the measured values are less than or equal to the applicable standards listed in Appendix 3 (a)(7).

(III) The vehicle will fail the high speed mode and test will be terminated if neither the provisions of paragraphs (e) (ii)(B)(I) or (e) (ii)(B)(II) is satisfied.

(f) Second-chance idle mode. If the vehicle fails the first-chance idle mode and passes the high-speed mode, the mode timer will reset to zero (mt=0) and a second chance idle mode will commence. The second-chance idle mode will have an overall maximum mode time of 30 seconds (mt=30). The test will consist on an idle mode only.

(i) The engines of 1981-1987 Ford Motor Company vehicles and 1984-1985 Honda Preludes will be shut off for not more than 10 seconds and restarted. The probe may be removed from the tailpipe or the sample pump turned off if necessary to reduce analyzer fouling during the restart procedure.

(ii) The mode timer will start (mt=0) when the vehicle engine speed is between 550 and 1300 rpm. If the engine speed exceeds 1300 rpm or falls below 550 rpm the mode timer will reset to zero and resume timing. The minimum second-chance idle mode length will be determined as described in paragraph (f) (iii) below. The maximum second-chance idle mode length will be 30 seconds (mt=30) elapsed time.

(iii) The pass/fail analysis will begin after an elapsed time of 10 seconds (mt=10). A pass or fail determination will be made for the vehicle and the second-chance mode will be terminated as follows:

(A) The vehicle will pass the second-chance idle mode and the test will be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), any measured values are less than or equal to 100 ppm HC and 0.5 percent CO.

(B) The vehicle will pass the second-chance idle mode and the test will be terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior to that time, the criteria of paragraph (f)(iii)(A), above, are not satisfied and the measured values during the time period between 25 and 30 seconds (mt=25-30) are less than or equal to the applicable short test standards listed Appendix 3 (a)(7).

(C) The vehicle will fail the second-chance idle mode and the test will be terminated if neither of the provisions of paragraphs (f) (iii)(A) or (f)(iii)(B), above are satisfied by an elapsed time of 30 seconds (mt=30).

 

 

 

IDLE TEST PROCEDURE

 

From 40 CFR 51 Appendix B to Subpart S -- Test Procedures

 

(I) Idle Test

(a) General requirements

(1) Exhaust gas sampling algorithm. The analysis of exhaust gas concentrations shall begin 10 seconds after the applicable test mode begins. Exhaust gas concentrations shall be analyzed at a minimum rate of two times per second. The measured value for pass/fail determinations shall be a simple running average of the measurements taken over five seconds.

(2) Pass/fail determination. A pass or fail determination shall be made for each applicable test mode based on a comparison of the short test standards contained in Appendix C to this subpart, and the measured value for HC and CO as described in paragraph (I)(a)(1) of this appendix. A vehicle shall pass the test mode if any pair of simultaneous measured values for HC and CO are below or equal to the applicable short test standards. A vehicle shall fail the test mode if the values for either HC or CO, or both, in all simultaneous pairs of values are above the applicable standards.

(3) Void test conditions. The test shall immediately end and any exhaust gas measurements shall be voided if the measured concentration of CO plus CO2 falls below six percent or the vehicle's engine stalls at any time during the test sequence.

(4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle engines equipped with multiple exhaust pipes shall be sampled simultaneously.

(5) The test shall be immediately terminated upon reaching the overall maximum test time.

(b) Test sequence.

(1) The test sequence shall consist of a first-chance test and a second-chance test as follows:

(i) The first-chance test, as described under paragraph (c) of this section, shall consist of an idle mode.

(ii) The second-chance test as described under paragraph (I)(d) of this appendix shall be performed only if the vehicle fails the first-chance test.

(2) The test sequence shall begin only after the following requirements are met:

(i) The vehicle shall be tested in as-received condition with the transmission in neutral or park and all accessories turned off. The engine shall be at normal operating temperature (as indicated by a temperature gauge, temperature lamp, touch test on the radiator hose, or other visual observation for overheating).

(ii) The tachometer shall be attached to the vehicle in accordance with the analyzer manufacturer's instructions.

(iii) The sample probe shall be inserted into the vehicle's tailpipe to a minimum depth of 10 inches. If the vehicle's exhaust system prevents insertion to this depth, a tailpipe extension shall be used.

(iv) The measured concentration of CO plus CO2 shall be greater than or equal to six percent.

(c) First-chance test. The test timer shall start (tt=0) when the conditions specified in paragraph (I)(b)(2) of this appendix are met. The first-chance test shall have an overall maximum test time of 145 seconds (tt=145). The first-chance test shall consist of an idle mode only.

(1) The mode timer shall start (mt=0) when the vehicle engine speed is between 350 and 1100 rpm. If engine speed exceeds 1100 rpm or falls below 350 rpm, the mode timer shall reset to zero and resume timing. The minimum mode length shall be determined as described under paragraph (I)(c)(2) of this appendix. The maximum mode length shall be 90 seconds elapsed time (mt=90).

(2) The pass/fail analysis shall begin after an elapsed time of 10 seconds (mt=10). A pass or fail determination shall be made for the vehicle and the mode shall be terminated as follows:

(i) The vehicle shall pass the idle mode and the test shall be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), measured values are less than or equal to 100 ppm HC and 0.5 percent CO.

(ii) The vehicle shall pass the idle mode and the test shall be terminated at the end of an elapsed time of 30 seconds (mt=30), if prior to that time the criteria of paragraph (I)(c)(2)(i) of this appendix are not satisfied and the measured values are less than or equal to the applicable short test standards as described in paragraph (I)(a)(2) of this appendix.

(iii) The vehicle shall pass the idle mode and the test shall be immediately terminated if, at any point between an elapsed time of 30 seconds (mt=30) and 90 seconds (mt=90), the measured values are less than or equal to the applicable short test standards as described in paragraph (I)(a)(2) of this appendix.

(iv) The vehicle shall fail the idle mode and the test shall be terminated if none of the provisions of paragraphs (I)(c)(2)(i), (ii) and (iii) of this appendix is satisfied by an elapsed time of 90 seconds (mt=90). Alternatively, the vehicle may be failed if the provisions of paragraphs (I)(c)(2)(i) and (ii) of this appendix are not met within an elapsed time of 30 seconds.

(v) Optional. The vehicle may fail the first-chance test and the second-chance test shall be omitted if no exhaust gas concentration lower than 1800 ppm HC is found by an elapsed time of 30 seconds (mt=30).

(d) Second-chance test. If the vehicle fails the first-chance test, the test timer shall reset to zero (tt=0) and a second-chance test shall be performed. The second-chance test shall have an overall maximum test time of 425 seconds (tt=425). The test shall consist of a preconditioning mode followed immediately by an idle mode.

(1) Preconditioning mode. The mode timer shall start (mt=0) when the engine speed is between 2200 and 2800 rpm. The mode shall continue for an elapsed time of 180 seconds (mt=180). If engine speed falls below 2200 rpm or exceeds 2800 rpm for more than five seconds in any one excursion, or 15 seconds over all excursions, the mode timer shall reset to zero and resume timing.

(2) Idle mode.

(i) Ford Motor Company and Honda vehicles. The engines of 1981-1987 Ford Motor Company vehicles and 1984-1985 Honda Preludes shall be shut off for not more than 10 seconds and restarted. This procedure may also be used for 1988-1989 Ford Motor Company vehicles but should not be used for other vehicles. The probe may be removed from the tailpipe or the sample pump turned off if necessary to reduce analyzer fouling during the restart procedure.

(ii) The mode timer shall start (mt=0) when the vehicle engine speed is between 350 and 1100 rpm. If engine speed exceeds 1100 rpm or falls below 350 rpm, the mode timer shall reset to zero and resume timing. The minimum idle mode length shall be determined as described in paragraph (I)(d)(2)(iii) of this appendix. The maximum idle mode length shall be 90 seconds elapsed time (mt=90).

(iii) The pass/fail analysis shall begin after an elapsed time of 10 seconds (mt=10). A pass or fail determination shall be made for the vehicle and the idle mode shall be terminated as follows:

(A) The vehicle shall pass the idle mode and the test shall be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), measured values are less than or equal to 100 ppm HC and 0.5 percent CO.

(B) The vehicle shall pass the idle mode and the test shall be terminated at the end of an elapsed time of 30 seconds (mt=30), if prior to that time the criteria of paragraph (I)(d)(2)(iii)(A) of this appendix are not satisfied and the measured values are less than or equal to the applicable short test standards as described in paragraph (I)(a)(2) of this appendix.

(C) The vehicle shall pass the idle mode and the test shall be immediately terminated if, at any point between an elapsed time of 30 seconds (mt=30) and 90 seconds (mt=90), measured values are less than or equal to the applicable short test standards described in paragraph (I)(a)(2) of this appendix.

(D) The vehicle shall fail the idle mode and the test shall be terminated if none of the provisions of paragraphs (I)(d)(2)(iii)(A), (d)(2)(iii)(B), and (d)(2)(iii)(C) of this appendix

(E) Are satisfied by an elapsed time of 90 seconds (mt=90)

 

DEPARTMENT OF PUBLIC SAFETY

Alcoholic Beverage Control Commission

Statutory Authority: 4 Delaware Code,

Section 304(a)(1) (4 Del.C. 304(a)(1))

 

In compliance with 29 Del.C. section 10115, the Commission submits the following:

 

1. TITLE OF THE REGULATIONS:

Rules of the Delaware Alcoholic Beverage Control Commission

 

2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES:

The Delaware Alcoholic Beverage Control Commission is proposing to amend Rule 29. The rule as amended provides non-discriminatory procedures for timely notification of prices, post-offs, and quantity discounts of alcoholic liquor offered for sale by Delaware wholesalers to Delaware retailers and governs related practices.

 

3. POSSIBLE TERMS OF THE AGENCY ACTION:

None.

4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT:

4 Del.C. Chp. 3

5. OTHER REGULATIONS THAT MAY BE AFFECTED BY THE PROPOSAL:

None

6. NOTICE OF PUBLIC COMMENT:

A public hearing on the proposed amendment to Rule 29 will be held on April 1, 1999 at 9:00 a.m. in the third floor conference room of the Commission, Carvel State Building, 820 North French Street, Wilmington, Delaware. Written comments may be submitted any time prior to April 1, 1999 to Donald J. Bowman, Sr., Director, Delaware Alcoholic Beverage Control Commission, 820 North French Street, Wilmington, Delaware, 19801. For copies of the proposed regulation, the public should call Joanne Episcopo at (302) 577-5222.

RULE 29

PUBLICATION OF PRICES AND POST-OFFS BY WHOLESALERS

 

I. Purpose

The purpose of this rule shall be to promote the public benefits of a competitive, economic environment based upon free enterprise within the Delaware alcoholic liquor industry. It is the intent of the Delaware Alcoholic Beverage Control Commission to promote an equitable system for the efficient distribution of alcoholic liquor in our state and to promote freedom of economic opportunity for all Delaware liquor licensees.

In furtherance of these goals, this rule is promulgated to provide non-discriminatory procedures for the publishing of prices, post-offs, and quantity discounts of alcoholic liquor offered for sale by Delaware wholesalers to Delaware retailers and to govern related practices.

 

II. Authority

The Delaware Alcoholic Beverage Control Commission is authorized pursuant to 4 Del. C., § 304(a)(2), to establish by rules and regulations an effective control of the manufacture, sale, dispensing, distribution, and importation of alcoholic liquor within and into this state. Such rules, however, may not be inconsistent with Title 4 of the Delaware Code or any other law of the State. This rule, therefore, implements and clarifies the grant of authority to the Commission contained in 4 Del. C., § 304(a)(2), to control the time, place, and manner in which alcoholic liquor shall be sold or dispensed.

The need to promulgate this rule was based on testimony received at public hearings and is consistent with the Commission's duty to promulgate rules that serve the public interest and further the objectives of the Liquor Control Act. It is the Commission's finding that a procedure is needed to ensure timely and accurate publication to the industry of all prices, post-offs, and quantity discounts to be offered in a non-discriminatory manner by wholesalers to retailers during specified periods of time.

The Commission further finds that the orderly publication of prices will benefit the Commission in its duties to effectively control the manufacture, sale, dispensing, distribution and importation of alcoholic liquor within and into this state including the time, place, and manner in which alcoholic liquor shall be sold and dispensed not inconsistent with the Liquor Control Act or any other laws of the State.

The Commission also finds that the orderly publication of prices and the establishment of procedures governing post-offs and quantity discounts will further the underlying purpose of the Liquor Control Act to provide the people of every community in Delaware with a reasonably convenient opportunity to make a legal purchase of alcoholic liquor.

 

III. 29.1 Definitions

 

Price: Means the amount of money given or set as consideration for the sale of a specified order of alcoholic liquor.

 

Post-Off: Means a reduction in the price regularly charged by wholesalers, as published to the trade, which is sold by wholesalers to licensed retailers.

 

Quantity Discount: Means a reduction in the price regularly charged by wholesalers, as published to the trade, which is sold by wholesalers to licensed retailers and is based on whole or in part on the quantity of alcoholic liquor purchased.

 

Monthly Price List: Means the monthly price listing prepared by, or on behalf of, a Delaware licensed wholesaler for all alcoholic liquor prices, post-offs, and quantity discounts offered for sale to Delaware licensed retailers. The monthly price list shall contain the presumptive price, but may be superseded by any subsequent updated notification issued by the wholesaler, provided the Division is notified of the updated listing.

 

Designated Publication: Means the single publication agreed to be used by the a majority of the licensed Delaware Alcoholic Beverage Wholesalers Association as the monthly price listing for the compilation of monthly price lists for all alcoholic liquor prices, post-offs, and quantity discounts offered for sale to Delaware licensed retailers. In the absence of a clear majority voting to change the existing publication, the publication will remain the publication that is in effect at the time of the vote.

 

Updated Notification: Means notification of changes to prices, post-offs and quantity discounts made after the submission of the monthly Price List to the designated publication.

 

Wholesaler: Means licensed Delaware wholesaler.

 

Retailer: Means all establishments licensed by the Commission to sell alcoholic liquor directly to the public.

 

IV. History

Prior to the current revision of Rule 29, the regulation of pricing, post-offs, and tie-in sales were controlled separately by Rules 29, 29.1, and 30, respectively. Quantity discounts from wholesalers to retailers were prohibited by Rules 29 and 29.1. The Commission, by promulgation of this rule, is repealing the prohibition on quantity discounts; however, it is not requiring wholesalers to offer quantity discounts or post-offs. It is the Commission's finding that the offering of quantity discounts is a decision that should be made by each wholesaler.

In addition to removing the ban on quantity discounts, the Commission has consolidated and clarified the remaining provisions of Rules 29, 29.1, and 30 (including the removal of the ninety-day post and hold rule) into the current, revised edition of Rule 29.

 

V. 29. Applicability REGULATION OF PRICES AND POST-OFFS BY WHOLESALERS

This rule regulation shall govern the procedure by which all licensed wholesalers publish notice prices, post-offs, and quantity discounts of alcoholic liquor offered for sale to licensed Delaware retailers. The sale of all alcoholic liquor in Delaware by wholesalers to retailers must conform to the provisions of this rule regulation. In addition, this rule regulation shall govern the procedure by which records relating to post-offs and quantity discounts are maintained.

 

VI. 29.2. Procedures for Providing Notice of Prices, Post-Offs, and Quantity Discounts

A. Every wholesaler, licensed by the Commission to sell alcoholic liquor, shall submit by the eighteenth day of each month a written notice to the designated publication listing all of the alcoholic products they intend to offer for sale during the next calendar month. This notice shall include regular prices, as well as post-offs and quantity discounts if offered.

B. A copy of the aforementioned notice shall also be filed with the Division of Alcoholic Beverage Control when transmitted to the designated publication. There shall be no change, revision, substitution, or addition to the aforementioned price listing notice after the eighteenth day of each month without prior approval of the Commission.

C. The duration of the prices set for post-offs and quantity discounts shall be the effective dates listed in the designated publication and shall be five (5) days or more.

D. The publisher of the designated publication shall make every reasonable effort to ensure that the publication is transmitted to all subscribers of record in time to be received by them not less than five (5) working days before the effective date of the prices listed in that particular monthly issue of the designated publication.

a. Every wholesaler shall prepare a monthly price list of all alcoholic products they intend to offer for sale during the next month. This monthly price list shall include regular prices, as well as post-offs and quantity discounts, if offered. The monthly price list shall be printed in a publication designated by a majority of licensed Delaware Wholesalers not less than five (5) business days prior to the end of the preceding month.

b. A copy of the monthly price list shall also be filed with the Division(via hard copy and/or electronically) when submitted to the designated publication. The prices stated therein shall be the "presumptive price", subject to change, revision, substitution, or addition in accordance with the updated notification procedures set forth herein.

c. In the event of a change in the price from that set forth in the monthly price list, the wholesaler shall provide Updated Notification, to all licensed retailers, and to the Division (via hard copy and/or electronically) Updated notification shall be made by a wholesaler to all licensed retailers via a recorded message, accessible through a toll-free "800" number, which can be accessed by any licensed retailer 24 hours a day to obtain information regarding current pricing of items being offered by the wholesaler. The "800" number will be updated every Monday by 10:00 a.m.: provided however, notwithstanding anything in this regulation to the contrary, that any wholesaler may change prices at anytime by mailing a pricing announcement to all retailers and the Division by U.S. mail. In the event of a conflict between the recorded message and the mailed notice the lower price will control. In addition, the wholesaler shall advise the Division of prices offered in the "800" number at the time any change is made to the recorded message.

d. Upon Petition of an interested party, the Commission may approve an alternative procedure(s) for providing notice of prices, post-offs and quantity discounts where the petitioner demonstrates that (1) the alternative method is technologically feasible, (2) will provide sufficient notice of prices, post-offs and quantity discounts to Delaware retailers and to the Division, and (3) will not harm the public interest.

 

VII. 29.3. Procedures for Providing Notice of Prices for New Products

A. a. Prices of new brands, types, or sizes shall be effective three (3) days after the wholesaler has given the required notice in writing to the trade industry, as follows:

1. By mailing a pricing announcement directly to all retail licensees of the trade and the Division by United States mail, or

2. By publication of prices in the designated publication as heretofore described, or

By inclusion of prices in the monthly price list submitted to the designated publication as heretofore described, or

3. By other means approved by the Commission which are reasonably likely to reach all retail licensees of the trade in a timely manner. By including notice thereof in the form of Updated Notification, as described in 29.2 (c) above.

B. b. Newly listed or changed prices shall continue from their effective date until changed by the wholesaler in accordance with the procedures established by this rule regulation. The duration of the prices set for post-offs and quantity discounts of new products shall be the effective dates listed in the new product pricing announcement and shall be five (5) days or more, the monthly price list, and/or in the Updated Notification.

c. Alternative methods for providing notice of prices for new products may be approved by the Commission in the same manner set forth in paragraph 29.2 (d) of this regulation.

 

VIII. 29.4. Duty of Wholesalers to Fill Orders

The procedure and rules regulations for licensed wholesalers who offer post-offs or quantity discounts to licensed retailers shall be as follows:

A. a. Licensed wholesalers shall not discriminate among licensed retailers in filling orders for post-offs or quantity discounts. based on the size of the order or the retail licensee's geographic location within the state.

B. Licensed wholesalers shall not offer post-offs or quantity discounts to licensed retailers unless they are reasonably certain that adequate inventory is either on hand or on order to satisfy anticipated demand during the effective dates of the offering.

C b. Licensed wholesalers must honor the orders placed by licensed retailers for post-offs and quantity discounts in the sequential order in which they are placed, unless excused from doing so by the Commission upon proof of good cause.

D c. If a licensed wholesaler is unable to fill the first order of a retailer for a post off or quantity discount due to the depletion of its stock, the retailer shall have the option of having the order filled when stock is again available at the same price offered during the post-off or quantity discount period when stock is next available, or of purchasing a suitable substitute product of comparable value if the wholesaler chooses to offer a substitute product.

E. d. Licensed wholesalers shall deliver all alcoholic liquor products offered for sale as post-offs or quantity discounts to the purchasing licensed retailer within three (3) five (5) working days, not including weekends or legal holidays, of the last date that the post-off or quantity discount is offered.

e. Notwithstanding anything within this regulation to the contrary, offers of distressed items in quantities of more than 10 cases shall be made on a "first come/first serve" basis, subject to the requirement that Updated Notification of such post-off be given. Distressed items, excluding beer, in quantities of 10 cases or less shall not be subject to the Updated Notification requirements of these regulations and may be offered for sale to any retail licensee at the licensed wholesaler's discretion. For purposes of this subsection: 1) a distressed item is an alcoholic beverage product subject to close-out and/or expiration, and 2) "first come/first serve" means that orders for alcoholic beverage products are filled in the sequential order by which the orders are received by the wholesaler.

 

IX. 29.5. Procedure for Recording the Sale of Alcoholic Liquor by Wholesalers

Every sale of alcoholic liquor, including post-offs, quantity discounts, and otherwise reduced prices, shall be recorded by the licensed wholesaler on a written invoice or bill of sale containing at a minimum the following:

A. 1. Name of the wholesaler

B. 2. Name of the retailer

C. 3. Date of sale

D. 4. Quantity of alcoholic liquor sold

E. 5. Price of alcoholic liquor sold

F. 6. Brand

G. 7. Size of container

H. 8. Date of delivery

 

The regular price of alcoholic liquor sold at post-off, or quantity discount, or discount pursuant to Section 29.4 (d) above shall also be stated on the bill of sale or invoice, as well as the basis for the discount. All credit(s) associated with the sale of alcoholic liquor must be stated or affixed to the original bills of sale or invoices retained by the licensed retailer and wholesaler.

 

X. 29.6. Tie-In Sales

A requirement by a wholesaler that a retailer purchase one product in order to purchase another is prohibited. This prohibition includes combination sales if one or more products may be purchased only in combination with other products and not individually. However, a wholesaler is not prohibited from selling at a special combination price two or more kinds or brands of products to a retailer, provided (a) the retailer has the option of purchasing either or both products at the usual price, and (b) the retailer is not required to purchase any product he or she does not want. As to (a) and (b) above, wholesaler licensees shall not ,however, be required to sell or deliver beer to a retail licensee in quantities of less than five (5) cases.

 

XI. 29.7. Consortium Buying

a. Nothing in this regulation shall be deemed to preclude a wholesaler of alcoholic liquor licensed by the Delaware Alcoholic Beverage Control Commission from publishing or offering a discount, based upon the quantity of product purchased, to a pool, cooperative, or consortium of two or more licensed retailers, provided that the billing, shipment, transportation, and storage of all related alcoholic liquor conforms with state law and the regulations of the Commission. Similarly nothing in this regulation shall be deemed to require a wholesaler of alcoholic liquor to offer post-offs or quantity discounts.

b. The delivery of all alcoholic liquor purchased by a pool, cooperative, or consortium of retailers, to its members, must be made by the holder of a license issued by the Commission to deliver alcoholic liquor, as required by 4 Del. C., § 701.

 

XII. 29.8. Severability

 

If any part of this regulation is held to be unconstitutional or otherwise contrary to law, then it shall be severed and the remaining portions shall remain in full force and effect.

 


1. Filing deadline set by adoption of Life and Health Bulletin No. 21 on October 6, 1998.






FINAL REGULATIONS

Symbol Key

 

Roman type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text added at the time of the proposed action. Language which is stricken through indicates text being deleted. [Bracketed Bold language] indicates text added at the time the final order was issued. [Bracketed stricken through] indicates language deleted at the time the final order was issued.

Final Regulations

 

The opportunity for public comment shall be held open for a minimum of 30 days after the proposal is published in the Register of Regulations. At the conclusion of all hearings and after receipt within the time allowed of all written materials, upon all the testimonial and written evidence and information submitted, together with summaries of the evidence and information by subordinates, the agency shall determine whether a regulation should be adopted, amended or repealed and shall issue its conclusion in an order which shall include: (1) A brief summary of the evidence and information submitted; (2) A brief summary of its findings of fact with respect to the evidence and information, except where a rule of procedure is being adopted or amended; (3) A decision to adopt, amend or repeal a regulation or to take no action and the decision shall be supported by its findings on the evidence and information received; (4) The exact text and citation of such regulation adopted, amended or repealed; (5) The effective date of the order; (6) Any other findings or conclusions required by the law under which the agency has authority to act; and (7) The signature of at least a quorum of the agency members.

The effective date of an order which adopts, amends or repeals a regulation shall be not less than 10 days from the date the order adopting, amending or repealing a regulation has been published in its final form in the Register of Regulations, unless such adoption, amendment or repeal qualifies as an emergency under §10119.

 

 

DEPARTMENT OF EDUCATION

Statutory Authority: 14 Delaware Code,

Section 122(d) (14 Del.C. 122(d))

 

REGULATORY IMPLEMENTING ORDER

 

OPTIONS FOR AWARDING CREDIT TOWARD HIGH SCHOOL GRADUATION

 

I. SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED

 

The Secretary seeks the consent of the State Board of Education to amend six regulations by combining them into one regulation entitled Options For Awarding Credit Toward High School Graduation. The existing regulations are found on pages D-6 to D-12 in the Handbook for K-12 Education. They include C., 1-3, Early College Admission, D., 1 and 2, Make-up Work or Nontraditional Study, E., 1 and 2, Make-up Work Because of Failure, H., 1 and 2, Correspondence Schools, I., 1-5, Tutoring, and J., 1., a-c, Additional Options for High School Graduation. Sections F and G were amended previously as the regulations for the James H. Groves High School.

The focus of the amended regulation is drawn from existing regulation J., Additional Options for High School Graduation and adds correspondence courses, distance learning courses, and tutoring to the list of options. The amended regulation clearly states that a student must have the school board or its designee's pre-approval of the option(s) and that the option(s) must meet the state content standards. The amended regulation eliminates repetitious language of a technical assistance nature, the formula for equating college and high school credits and the equating of a correspondence school diploma with a Delaware high school diploma through an endorsement by the Department of Education.

Notice of the proposed regulation was published in the News Journal and the Delaware State News on January 15, 1999, in the form hereto attached as Exhibit A. The notice invited written comments and none were received from the newspaper advertisements.

 

II. FINDINGS OF FACT

 

The Secretary finds that it is necessary to amend these regulations because they all address the same issue and need to be consolidated into one regulation. The technical assistance parts need to be eliminated and the remaining language needs to be clarified.

 

III. DECISION TO AMEND THESE REGULATIONS

 

For the foregoing reasons, the Secretary concludes that it is necessary to amend these regulations. Therefore, pursuant to 14 Del. C., Section 122, the regulations attached hereto as Exhibit B are hereby amended. Pursuant to the provisions of 14 Delaware Code, Section 122(e), the regulation hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below.

 

IV. TEXT AND CITATION

 

The text of the regulation hereby amended shall be in the form attached hereto as Exhibit B, and said regulation shall be cited in the document entitled the Regulations of the Department of Education.

 

V. EFFECTIVE DATE OF ORDER

 

The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del. C., Sec. 122, in open session at the said Board's regularly scheduled meeting on February 18, 1999. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations.

 

IT IS SO ORDERED this 18th day of Feburary, 1999.

 

DEPARTMENT OF EDUCATION

Dr. Iris T. Metts, Secretary of Education

Approved this 18th day of February, 1999.

 

STATE BOARD OF EDUCATION

Dr. James L. Spartz, President

Nancy A. Doorey

John W. Jardine, Jr.

Dr. Joseph A. Pika

Dennis J. Savage

Dr. Claibourne D. Smith

 

AS AMENDED

EXHIBIT B

 

500.12. Options for Awarding Credit Toward High School Graduation

1.0 The following options are approved by the Department of Education as means for awarding credit toward high school graduation. In all cases listed the option or options selected shall be approved ahead of time by the local School Board or their designee(s) and shall [meet incorporate] the appropriate state content standards.

1.1 Courses taken at or through an accredited community college, two or four year college.

1.2 Voluntary community service as defined in 14 Del. C., Sections 8901A and 8902A.

1.3 Supervised work experience in the school and the community which meets the educational objectives or special career interest of the individual student.

1.4 Independent Study.

1.5 Nationally Accredited Correspondence Courses.

1.6 Distance Learning Courses. These courses may be synchronous or asynchronous via videos or online format.

1.7 High school courses taken while in the middle school in conjunction with an articulated agreement between the district middle school and the district high school(s).

1.8 Course credit transferred from another high school.

1.9 Course credit earned through summer or evening school classes, as a member of the military service and/or as part of the James H. Groves Adult High School.

1.10 Tutoring programs taught by a teacher certified in the subject being taught.

1.11 Course credit awarded by agencies or instrumentalities of the state other than public schools which provide educational services to students. A description of the program provided to the student, grades given, and the number of clock hours of instruction or a demonstration of competency must be provided to the school district prior to receipt of credit.

 

 

 

DEPARTMENT OF HEALTH

AND SOCIAL SERVICES

Division of Social Services

Statutory Authority: 31 Delaware Code,

Section 512 (31 Del.C. 512)

 

IN THE MATTER OF: |

|

REVISION OF THE REGULATIONS |

OF THE FOOD STAMP PROGRAM |

 

 

NATURE OF THE PROCEEDINGS:

 

Delaware Health and Social Services (DHSS) initiated proceedings to amend existing regulations contained in Section 9085 of the Division of Social Services Manual (DSSM), pursuant to the Administrative Procedures Act.

On January 1, 1999, the DHSS published in the Delaware Register of Regulations (pages 1074-1075) its notice of proposed regulation changes, pursuant to 29 Delaware Code Section 10115. Emergency regulations were also published in the January 1, 1999, Register (pages 1054-1055) for these changes. Both requested that written materials and suggestions from the public concerning the proposed regulations be delivered to DHSS by January 31, 1999, at which time the Department would review information, factual evidence and public comment to the said proposed changes to the regulations.

It was determined that no written materials or suggestions had been received from any individual or the public.

 

FINDINGS OF FACT:

 

The Department finds that the proposed changes, as set forth in the attached copy should be made in the best interest of the general public of the State of Delaware.

THEREFORE, IT IS ORDERED that the proposed regulations of the Food Stamp Program are adopted and shall become effective ten days after publication of the final regulation in the Delaware Register.

 

2/8/99 GREGG C. SYLVESTER

 

9085 Reporting Changes

 

Certified households are required to report the following changes in circumstances:

Changes in the sources of income or in the amount of gross unearned income of more than $25, except changes in the public assistance grant or GA grant in project areas where the GA grant and the food stamp application are jointly processed. Since DSS has prior knowledge of all changes in the public assistance grant and general assistance grants, action shall be taken on the DSS information. Changes reported in person or by telephone are to be acted upon in the same manner as those reported on the change report form;

 

Changes in the amount of gross earned income will be reported as follows:

 

 

 

Division of Social Services

Statutory Authority: 31 Delaware Code,

Section 512 (31 Del.C. 512)

 

IN THE MATTER OF: |

|

REVISION OF THE REGULATIONS |

OF THE MEDICAID/MEDICAL |

ASSISTANCE PROGRAM |

 

NATURE OF THE PROCEEDINGS:

 

The Delaware Department of Health and Social Services ("Department") initiated proceedings to update policies related to outpatient hospital, inpatient hospital, EPSDT, school based health services and general policies. The Department's proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512.

The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the January 1999 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by February 1999, at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.

No written or verbal comments were received relating to this proposed rule.

 

FINDINGS OF FACT:

 

The Department finds that the proposed changes as set forth in the January 1999 Register of Regulations should be adopted as written.

THEREFORE, IT IS ORDERED, that the proposed regulations of the Medicaid/Medical Assistance Program are adopted and shall be final effective March 10, 1999.

 

2/11/99 Gregg C. Sylvester, M.D.

Secretary

 

 

*Please note that no changes were made to the regulation as originally proposed and published in the January 1999 issue of the Register at page 1076 (2:7 Del.R. 1076). Therefore, the final regulation is not being republished. Please refer to the January 1999 issue of the Register or contact the Department of Health and Social Services.

 

 

 

Division of Social Services

Statutory Authority: 31 Delaware Code,

Section 512 (31 Del.C. 512)

 

IN THE MATTER OF: |

|

REVISION OF THE REGULATIONS |

OF THE MEDICAID/MEDICAL |

ASSISTANCE PROGRAM |

 

NATURE OF THE PROCEEDINGS:

 

The Delaware Department of Health and Social Services ("Department") initiated proceedings to update Medical Assistance eligibility rules. The Department's proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512.

The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the January 1999 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by February 1, 1999, at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.

No written or verbal comments were received relating to this proposed rule.

 

FINDINGS OF FACT:

The Department finds that the proposed changes as set forth in the January 1999 Register of Regulations should be adopted as written.

THEREFORE, IT IS ORDERED, that the proposed regulations of the Medicaid/Medical Assistance Program are adopted and shall be final effective March 10, 1999.

 

2/12/99 Gregg C. Sylvester, M.D.

Secretary

 

*Please note that no changes were made to the regulation as originally proposed and published in the January 1999 issue of the Register at page 1075 (2:7 Del.R. 1075). Therefore, the final regulation is not being republished. Please refer to the January 1999 issue of the Register or contact the Department of Health and Social Services.

 

 

 

DEPARTMENT OF NATURAL RESOURCES AND

ENVIRONMENTAL CONTROL

Division of Air & Waste Management

Waste Management Section

Statutory Authority: 7 Delaware Code,

Chapter 60 (7 Del.C. Ch.60)

 

Secretary's Order No. 99-A-0005

Date of Issuance: February 10, 1999

 

Re: Proposal to Amend the Delaware Regulations

Governing Solid Waste

 

Effective Date of Regulatory Amendments: March 10, 1999

 

I. Background

On Thursday, January 7, 1999, at 7:00 p.m. a public hearing was held in the DNREC Auditorium at 89 Kings Highway, Dover, Delaware. Proper notice of the hearing was provided as required by law. The public hearing concerned proposed amendments to the Delaware Regulations Governing Solid Waste. The Department had adopted the Delaware Regulations Governing Solid Waste in 1988 and last amended them in 1994. The purpose of the 1999 hearing was to revise certain items in the 1994 version of the Regulations.

These proposed modifications to the regulations were first published in the Delaware Register of Regulations, Vol. 2, Issue 4, on Thursday, October 1, 1998. Thereafter, a public workshop was held on October 22, 1998, to explain the proposed changes and allow the Solid Waste Branch an opportunity to directly respond to questions from the public. As a result of these comments, the Solid Waste Branch proposed modifications to the previously noticed changes. The revised proposed regulatory changes were again published in the Delaware Register of Regulations, Vol. 2, Issue, 6, on Tuesday, December 1, 1998. Thereafter on January 7, the public hearing was held. At that time, the Solid Waste Branch noted four corrections from the version of the regulatory language that had been published on December 1.

During the hearing, the Solid Waste Branch identified several written comments which it had received and further received oral comments from several members of the public at the hearing. The hearing record was closed at the conclusion of the public hearing, except that the Hearing Officer requested that the Solid Waste Branch issue a technical evaluation of the comments in the record to assist in his review of the public record. The Solid Waste Branch's technical evaluation was presented in a document entitled "Response to Public Comments Re: Proposed Changes in the Delaware Regulations Governing Solid Waste." This document was received by the Hearing Officer on or about February 2, 1999, and is expressly incorporated herein. Thereafter, on February 8, 1999, the Hearing Officer issued his report and recommendation which is also expressly incorporated herein by reference.

 

II. Findings

1. The Department provided proper notice of the hearing as required by law.

2. An informal public workshop concerning the regulatory proposal was held on October 22, 1998.

3. The Solid Waste Branch's evaluation of the technical issues in the record includes all comments received in writing before the hearing and presented orally during the public hearing.

4. The Solid Waste Branch's technical evaluation is extremely thorough and addresses all comments pertaining to areas in which there have been proposed changes.

5. In addition, the Solid Waste Branch's technical evaluation also notes areas in which future changes or modifications have been suggested and agrees to take these into account when developing future revisions to the Regulations.

6. In each instance where the Solid Waste Branch recommended not making changes suggested by the public, its recommendation was supported by technical evidence that the proposed change would not sufficiently protect public health and the environment.

7. Any changes in the text of the proposed regulatory changes made in response to comments in the record are not significant with respect to requiring this regulatory action be republished before changes may be promulgated.

8. The record supports promulgation of the amendment to the Delaware Regulations Governing Solid Waste.

 

III. Order

In view of the above findings, it is hereby ordered that the Delaware Regulations Governing Solid Waste be amended as recommended by the Solid Waste Branch's technical evaluation in the manner and form provided by law.

 

IV. Reasons

The proposed amendments to the Delaware Regulations Governing Solid Waste will further the policies and purposes of 7 Del. C. Chapter 60, in that they will address the disposal of solid waste in a manner designed to reduce negative impacts on surface and ground waters.

 

Mary L. McKenzie, Acting Secretary

 

SECTION 1: DECLARATION OF INTENT

 

The Delaware Department of Natural Resources and Environmental Control finds and declares that improper solid waste handling and disposal practices may result in environmental damage, including substantial degradation of the surface and ground water and waste of valuable land and other resources, and may constitute a continuing hazard to the health and welfare of the people of the State. The Department further finds that the utilization of solid waste handling and disposal facilities which are properly located, designed, operated, and monitored will minimize environmental damage and protect public health and welfare.

It is the intent of the Department to require that solid waste handling and disposal be conducted in a manner and under conditions which will eliminate the dangerous and deleterious effects of improper solid waste handling and disposal upon the environment and upon human health, safety, and welfare.

The purposes of these regulations are:

1. To encourage, in all appropriate ways, recycling, reuse, and reclamation processes, and

2. To implement the provisions of 7 Del. Code, Chapter 60, the Delaware Environmental Protection Act, which directs the Department to put into effect a program for improved solid waste storage, collection, transportation, processing, transfer, and disposal by providing that such activities may henceforth be conducted only in an environmentally acceptable manner pursuant to a permit obtained from the Department.

 

SECTION 2. SCOPE AND APPLICABILITY

 

A. AUTHORITY

1. These regulations are enacted pursuant to 7 Del. Code, Chapter 60, entitled "Delaware Environmental Protection Act".

2. These regulations shall be known as "Regulations Governing Solid Waste" and shall repeal the "Delaware Solid Waste Disposal Regulation".

 

B. APPLICABILITY

1. These regulations apply to any person using land or allowing the use of land for the purposes of storage, collection, processing, transfer, or disposal of solid waste; and to any person transporting solid waste in or through the State of Delaware. The following shall be subject to the provisions of these regulations:

a. Sanitary landfills

b. Industrial landfills

c. Dry waste disposal facilities

Resource recovery facilities

d. Transfer stations

e. Special wastes handling

f. Transportation of solid waste

g. Storage of solid waste

2. These regulations do not apply to those agricultural wastes that are subject to regulations promulgated by the Division of Water Resources.

3. For the purposes of these regulations, all liquid wastes as defined herein are not regulated as solid wastes. Liquid wastes are subject to regulations promulgated by the Division of Water Resources.

For the purposes of these regulations, all wastes defined herein and that are subject to regulations promulgated by the Division of Water Resources shall not be regulated as solid wastes.

4. These regulations do not apply to any waste which meets the criteria of hazardous waste as described in the Delaware Regulations Governing Hazardous Waste.

 

C. EXEMPTIONS

The following activities are exempted from these regulations:

1. Disposal on a farm of the agricultural wastes which are generated on the farm or result from the operation of the farm, provided that the disposal is conducted in a manner that does not threaten potable drinking water supplies or surface waters [human health or the environment].

2. Composting, on a private property, the leaves, grass clippings, and other vegetation originating on the property. For all other composting operations, written approval must be obtained from the Department prior to commencing the composting operation. To obtain an approval, a person must submit the following to the Department:

a. A written plan of operation sufficient to assure the Department that the person understands the principles and proper methods of composting and has the intention and capability of applying proper methods and of conducting the operation in a manner that will not pose a threat to human health or the environment; and

b. A written statement of how the applicant proposes to use or dispose of the compost.

3. Disposal of clean fill.

4. Creation of brush piles on the property on which the material was generated.

5. The use of vegetative matter and untreated ground wood products to construct berms on the property on which the materials were generated. (Notification must be made to the Department prior to commencing this activity.)

6. Recycling of solid wastes into specific market applications. Written approval must be obtained from the Department prior to commencing this activity. Approval will be based on demonstration that there is an available market for the intended recycled material. To obtain approval, a person must submit the following to the Department:

a. A written plan of operation describing the types and quantities of materials that will be accepted at the facility, the processing methods and equipment that will be used, and the products that will be produced; and

b. Documentation demonstrating the existence of markets for the product.

 

D. TIMETABLE FOR COMPLIANCE

1. Existing facilities

a. Sanitary and industrial landfills

All existing facilities must comply with the provisions of these regulations, must be in compliance with these regulations by October 9, 1993, with the following exceptions:

a. Closed facilities or closed portions of facilities will not be required to disturb or replace their cap or cover system for the purpose of coming into compliance with these regulations.

b. Facilities currently operating under a permit which does not require a liner and/or a leachate detection system will not be required to install a liner or leachate detection system in closed or currently active areas for the purpose of coming into compliance with these regulations.

b. Dry waste disposal facilities

An owner or operator of an existing facility shall, within six months of enactment of Section 8 of these regulations, follow the procedures described in Section 4.C.2. All existing facilities must be in compliance with these regulations within six months after the date on which the Department approves the compliance plan described in Section 4.C.2.

c. Transfer stations

An owner or operator of an existing facility shall, within six months of enactment of Section 10 of these regulations, follow the procedures described in Section 4.E.2. All existing facilities must be in compliance with these regulations within six months after the date on which the Department approves the compliance plan described in Section 4.E.2.

d. Resource recovery facilities

An owner or operator of an existing facility shall follow the procedures described in Section 4.D.2. All existing facilities must come into compliance with these regulations in accordance with the compliance plan and timetable approved by the Department pursuant to Section 4.D.2.b (12).

2. New facilities and expansions of existing facilities

All new facilities and all expansions of existing facilities shall comply with the provisions of these regulations.

 

E. Nothing in these regulations shall be construed as relieving an owner or operator of a facility from the obligation of complying with any other laws, regulations, orders, or requirements which may be applicable.

 

SECTION 3: DEFINITIONS

The following words, phrases, and terms as used in these regulations have the meanings given below:

 

"100-YEAR FLOOD" means a flood that has a one percent or greater chance of recurring in any given year or a flood of a magnitude equaled or exceeded once in 100 years on the average over a significantly long period.

 

"ACTION LEAKAGE RATE" means the flow rate that can be sustained by the drainage layer (in a double liner system) without the head on the secondary liner exceeding the drainage layer thickness. [quantity of liquid collected from a leak detection system of a double liner system over a specified period of time which, when exceeded, requires certain actions to be taken as described in the Action Leakage Rate response plan approved by the Department.]

 

"ACTIVE LIFE" means the period of operation beginning with the initial receipt of solid waste and ending at the completion of closure activities.

 

"ACTIVE PORTION" means that portion of a facility that presently has an operating permit issued by the Department of Natural Resources and Environmental Control.

 

"AGRICULTURAL WASTE" means the carcasses of poultry or livestock which are being disposed for the purpose of disease control and crop residue [, crop residue,] or animal excrement which is returned to the land for use as a soil amendment.

 

"AQUIFER" means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells, springs or surface water.

 

"ASTM" means the American Society for Testing and Materials.

 

"AUTHORIZED REPRESENTATIVE" means the person responsible for the overall operation of a facility or an operational unit (i.e., part of a facility), e.g., the plant manager, landfill manager, superintendent, or person of equivalent responsibility.

 

"BOTTOM ASH" means the residue remaining in the combustion chamber of an incinerator after the combustion of fossil fuels.

"BUFFER ZONE" means those on-site areas adjacent to the facility property line which shall be left undeveloped during the active life as well as the inactive life of the facility.

 

"BULKY WASTE" means items whose large size or weight precludes or complicates their handling by normal collection, processing, or disposal methods.

 

"CAP" or "CAPPING SYSTEM" means the material used to cover the top and sides of a sanitary or industrial landfill when fill operations cease.

 

"CELL" means a discrete engineered area that is designed for the disposal of solid waste and that is a subpart of a landfill.

 

"CERTIFICATION" means a statement of professional opinion based upon knowledge and belief.

 

"CFR" means the Code of Federal Regulations.

"CLAY", as a soil separate, means the mineral soil particles less than 0.002 mm in diameter. As a soil textured class, "CLAY" means soil material that is 40% or more clay, less than 45% sand, and less than 40% silt. Clay used as a liner or cap should be classifiable as a CL or CH (Unified Soil Classification System) with a liquid limit between 30 and 60, should place above the A-line on the plasticity chart, and should have a minimum plastic index of 15. A clay liner should have a cation exchange capacity greater than 15 meq/100 grams and be in the neutral pH range.

 

"CLEAN FILL" means a nonwater-soluble, nondecomposable, environmentally inert solid such as rock, soil, gravel, concrete, broken glass, and/or clay or ceramic products.

 

"CLOSED PORTION" means that portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all other applicable closure requirements.

 

"CLOSURE" means the cessation of operation of a facility or a portion thereof and the act of securing such a facility so that it will pose no significant threat to human health or the environment.

"CLOSURE PLAN" means written reports and engineering plans detailing those actions that will be taken by the owner or operator of a facility to effect proper closure of that facility or a portion thereof.

 

"COMMERCIAL WASTE" means solid waste generated by stores, offices, restaurants, warehouses, and other non-manufacturing, non-processing activities.

 

"CONFINED AQUIFER" means an aquifer containing ground water which is everywhere at a pressure greater than atmospheric pressure and from which water in a well will rise to a level above the top of the aquifer. A confined aquifer is overlain by material of distinctly lower permeability ("confining bed") than the aquifer.

 

"CONTAMINANT" means any substance that enters the environment at a concentration that has the potential to endanger human health or degrade the environment.

 

"CONTROLLING SLOPES" means slopes on those areas of a liner that have a direct influence on the maximum leachate head, or slopes that are perpendicular to the collection laterals.

 

"DAILY COVER" means a layer of compacted earth, or other suitable material as approved by the Department, used to enclose a volume of solid waste each working day.

 

"DEPARTMENT" means The Department of Natural Resources and Environmental Control.

 

"DIKE" means an embankment or ridge of either natural or man-made materials used to prevent or to control the movement of solids, liquids, or other materials.

 

"DISCHARGE" means the accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a substance into or onto any land, water, or air.

 

"DISPOSAL" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or upon any land or water.

 

"DISPOSAL FACILITY" means any facility or portion of a facility at which solid waste is intended to be and/or is intentionally placed into or onto any land and at which solid waste will remain after closure has taken place.

 

"DOUBLE LINER SYSTEM" means a liner system consisting of two liners with a leachate detection and collection system in between.

 

"DRY WASTE" (formerly called "INERT SOLID WASTE") means wastes including, but not limited to, plastics, rubber, lumber, trees, stumps, vegetative matter, asphalt pavement, asphaltic products incidental to construction/demolition debris, or other materials which have reduced potential for environmental degradation and leachate production.

 

"ENVIRONMENTAL ASSESSMENT" means a detailed and comprehensive description of the condition of all environmental parameters as they exist at and around the site of a proposed action prior to implementation of the proposed action. This description is used as a baseline for assessing the environmental impacts of a proposed action.

 

"ENVIRONMENTALLY UNSOUND" means characterized by any condition, resulting from the methods of operation or design of a facility, which impairs the quality of the environment when compared to the surrounding background environment or any appropriate promulgated federal, state, county or municipal standard.

 

"EXISTING FACILITY" means a facility which was in operation or for which construction had commenced on or before the date of enactment of these regulations, provided that the facility was being constructed or operated pursuant to all permits and/or approvals required by the Department at the time of enactment. A facility has commenced construction if either:

(i) an on-site physical construction program has begun and is moving toward completion within a reasonable time; or

(ii) the owner or operator has entered into contractual obligations -- which cannot be cancelled or modified without substantial loss -- for physical construction to be completed within a reasonable time.

 

"EXPANSION" means the process of increasing the areal dimensions, vertical elevations, or slopes beyond the original approved limits of the facility.

 

"FACILITY" means all contiguous land, and structures, other appurtenances, and improvements on the land, used in resource recovery and/or the treatment, handling, composting, storage, or disposal of solid waste. A facility may consist of several operational units (e.g., one or more landfills, cells, incinerators, compactors, or combinations thereof).

 

"FINAL COVER" means the material used to cover the top and sides of a dry waste disposal facility when fill operations cease.

 

"FLOOD PLAIN" means the lowland and relatively flat areas adjoining inland and coastal waters, that are inundated by the 100-YEAR FLOOD.

 

"FLY ASH" means a powdery residue resulting from the combustion of fossil fuels and captured by air pollution control equipment prior to exiting the smokestack.

 

"FREE LIQUIDS" means liquids which readily separate from the solid portion of a waste under ambient temperature and pressure, using any or all of the following tests: EPA Paint Filter Test; EPA Plate Test; EPA Gravity Test.

 

"GARBAGE" means any putrescible solid and semi-solid animal and/or vegetable wastes resulting from the production, handling, preparation, cooking, serving or consumption of food or food materials.

 

"GENERATION" means the act or process of producing solid waste.

 

"GENERATOR" means the producer or the source of the solid waste.

 

"GEOMEMBRANE" means a prefabricated continuous sheet of flexible polymeric or geosynthetic material.

 

"GROUND WATER" means any water naturally found under the surface of the earth.

 

"HAZARDOUS WASTE" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating irreversible, illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. Without limitation, included within this definition are those hazardous wastes described in Sections 261.31, 261.32, and 261.33 of the Delaware Regulations Governing Hazardous Waste.

 

"HOUSEHOLD WASTE" means any solid waste derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas).

 

"HYDRAULIC CONDUCTIVITY" means the capacity to transmit water. It is expressed as the volume of water that will move in a unit of time under a unit hydraulic gradient through a unit area.

 

"IMPERMEABLE" means having a hydraulic conductivity equal to or less than 1 x 10-7 cm/sec as determined by field and laboratory permeability tests made according to standard test methods which may be correlated with soil densification as determined by compaction test.

 

"INDUSTRIAL LANDFILL" means a land site at which industrial waste is deposited on or into the land as fill for the purpose of permanent disposal, except that it will not include any facility that has been approved for the disposal of hazardous waste under the Delaware Regulations Governing Hazardous Waste.

 

"INDUSTRIAL WASTE" means any water-borne liquid, gaseous, solid, or other waste substance or a combination thereof resulting from any process of industry [(including the construction and demolition industry)], manufacturing, trade or business, or from the development of any agricultural or natural resource [and includes DRY WASTE].

 

"INERT SOLID WASTE": see "DRY WASTE".

 

"INFECTIOUS WASTE": see section 11, Part 1.B for definitions pertaining to infectious waste.

 

"INSTITUTIONAL WASTE" means solid waste that is generated by institutional enterprises such as social, charitable, educational, and government services and that is similar in nature to household waste.

 

"INTERMEDIATE COVER" means a layer of compacted earth, or other suitable material as approved by the Department, applied to a partially completed landfill.

 

"LANDFILL" means a natural topographic depression and/or man-made excavation and/or diked area, formed primarily of earthen materials, which has been lined with man-made and/or natural materials or remains unlined and which is designed to hold an accumulation of solid wastes.

"LEACHATE" means liquid that has passed through, contacted, or emerged from solid waste and contains dissolved, suspended, or miscible materials, chemicals, and microbial waste products removed from the solid waste.

 

"LIFT" means a completed series of compacted layers within a cell.

 

"LIMITED TRANSPORTER" means a person who uses five (5) or fewer vehicles to transport solid waste (excluding infectious waste and asbestos), which vehicles have a manufacturers Gross Vehicle Weight Rating of 26,000 pounds or more.

 

"LINER" means a continuous layer of impermeable material beneath and on the sides of a landfill or landfill cell.

 

"LIQUID WASTE" means a waste that contains less than 20 percent solids or releases free liquids.

 

"LOCAL AGENCY" means any special district, authority, municipality, county, or any other political subdivision.

 

"MATERIALS RECOVERY FACILITY" means a facility at which materials, other than source separated materials, are recovered from solid waste for recycling or for use as an energy source.

 

"MUNICIPAL SOLID WASTE" means household waste and solid waste that is generated by commercial, institutional, and industrial sources and is similar in nature to household waste.

 

"MUNICIPAL SOLID WASTE ASH" means the ash resulting from the combustion of municipal solid waste in a thermal recovery facility.

 

"MUNICIPALITY" means a city or town of the State of Delaware.

 

"NEW SANITARY LANDFILL CELL" means any municipal solid waste landfill unit which has not received waste prior to the effective date of these regulations. "SANITARY LANDFILL CELL" has the same meaning as "MUNICIPAL SOLID WASTE LANDFILL UNIT" in the RCRA Subtitle D (40 CFR Part 258) Regulations.

 

"NEW SOLID WASTE FACILITY" means a facility which was not in operation or for which construction had not commenced on or before the date of enactment of these regulations.

 

"ON-SITE" means on the same or geographically contiguous property which may be divided by public or private right-of-way. Non-contiguous properties owned by the same person but connected by a right-of-way which the owner controls and to which the public does not have access are also considered on-site property.

 

"OPEN BURNING" means the combustion of solid waste without:

(1) Control of combustion air to maintain adequate temperature for efficient combustion,

(2) Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion, and

(3) Control of the emission of the combustion products.

 

"OPERATOR" means the person responsible for the overall operation of a solid waste facility.

 

"OWNER" means the person who owns a facility or any part of a facility.

 

"PERMITTEE" means a person holding a permit issued by the Department pursuant to this regulation.

 

"PERSON" means any individual, trust, firm, joint stock company, federal agency, partnership, corporation (including a government corporation), association, state, municipality, commission, political subdivision of a state, any interstate body, company, society, or any organization of any form.

 

"PERSONNEL" or "FACILITY PERSONNEL" means all persons who work at, or oversee the operations of, a solid waste facility, and whose actions or failure to act may result in noncompliance with the requirements of the Delaware Solid Waste Regulations or other regulations under the jurisdiction of the State of Delaware.

 

"POST-CLOSURE CARE" means maintenance and long-term monitoring of, and financial responsibility for, a closed facility.

 

"RECHARGE AREA" means that portion of a drainage basin in which the net saturated flow of ground water is directed away from the water table.

 

"RECYCLABLE MATERIAL" means a solid waste that exhibits the potential to be used repeatedly in place of a virgin material.

 

"RECYCLING" means the process by which recyclable materials, which would otherwise be disposed of as solid waste, are returned to the economic mainstream in the form of raw materials or products.

 

"REFUSE" means any putrescible or nonputrescible solid waste, except human excreta, but including garbage, rubbish, ashes, street cleanings, dead animals, offal and solid agricultural, commercial, industrial, hazardous and institutional wastes, and construction wastes.

 

"REGULATED MEDICAL WASTE": see Section 11, Part 1.B. for definitions pertaining to REGULATED MEDICAL / INFECTIOUS WASTE.

 

"RESOURCE RECOVERY" means the process by which materials, excluding those under control of the Nuclear Regulatory Commission, which still have useful physical or chemical properties after serving a specific purpose are reused or recycled for the same or another purpose, including use as an energy source.

 

"RESOURCE RECOVERY FACILITY" means a facility that is either a MATERIALS RECOVERY FACILITY or a THERMAL RECOVERY FACILITY.

 

"RUBBISH" means any nonputrescible solid waste, excluding ashes, such as cardboard, paper, plastic, metal or glass food containers, rags, waste metal, yard clippings, small pieces of wood, excelsior, rubber, leather, crockery, and other waste materials.

 

"RUN-OFF" means any precipitation that drains over land from any part of a facility.

 

"RUN-ON" means any precipitation that drains over land onto any part of a facility.

 

"SALVAGING" means the controlled removal of solid waste from any facility for reuse of the waste material.

 

"SANITARY LANDFILL" means a land site at which solid waste is deposited on or into the land as fill for the purpose of permanent disposal, except that it will not include any facility that has been approved for the disposal of hazardous waste under the Delaware Regulations Governing Hazardous Waste.

"SANITARY LANDFILL CELL BOUNDARY" means a vertical surface located at the hydraulically downgradient limit of the cell. This vertical surface extends down into the uppermost aquifer. "Sanitary Landfill Cell Boundary" has the same meaning as "Waste Management Unit Boundary" in the RCRA Subtitle D (40 CFR Part 258) Regulations. "Sanitary Landfill" has the same meaning as "MSWLF" in the RCRA Subtitle D (40 CFR Part 258) Regulations.

 

"SATURATED ZONE" means that part of the earth's crust in which all the voids are filled with water.

 

"SCAVENGING" means the uncontrolled and/or unauthorized removal of solid waste from any facility.

 

"SECRETARY" means the Secretary of the Department of Natural Resources and Environmental Control or his duly authorized designee.

 

"SETBACK" means the area between the actual disposal area and the property line which can be used for construction of environmental control systems such as run-off diversion ditches, monitoring wells, or scales.

 

"SITE" means the area of land or water within the property boundaries of a facility where one or more solid waste treatment, resource recovery, recycling, storage or disposal areas are located.

 

"SLUDGE" means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.

 

"SOLID WASTE" means any garbage, refuse, rubbish, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semi-solid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows or industrial discharges which are point sources subject to permits under 7 Del. Code, Chapter 60, as amended, or source, special nuclear, or by-product material as defined by the Atomic Energy Act of l954, as amended.

 

"SOURCE SEPARATED" means divided into its separate recyclable components at the point of generation.

"SPECIAL SOLID WASTES" means those wastes that require extraordinary management. They include but are not limited to abandoned automobiles, white goods, used tires, waste oil, sludges, dead animals, agricultural and industrial wastes, infectious waste, municipal ash, septic tank pumpings, and sewage residues.

 

"STORAGE" means the holding of solid waste for a temporary period, at the end of which time the solid waste is treated, disposed of, or stored elsewhere.

 

"SUBBASE" means the supporting soil layers beneath a liner.

 

"SURFACE WATER" means water occurring generally on the surface of the earth.

 

"THERMAL RECOVERY FACILITY" means a facility designed to thermally break down solid waste and to recover energy from the solid waste.

 

"TOPSOIL" means the friable dark upper portion of a soil profile that contains mineral substances and organic material in varying degrees of decomposition and is capable of supporting vegetation.

 

"TRANSFER STATION" means any facility where quantities of solid waste delivered by vehicle are consolidated or aggregated for subsequent transfer by vehicle for processing, recycling, or disposal.

 

"TRANSPORTATION" means the movement of solid waste by air, rail, water, over the roadway, or on the ground.

 

"TRANSPORTER" means any person engaged in the transportation of solid waste.

 

"TREATMENT" means the process of altering the physical, chemical, or biological condition of the waste to prevent pollution of water, air, or soil or to render the waste safe for transport, disposal, or reuse.

 

"UNCONFINED AQUIFER" means an aquifer in which the upper surface of the zone of saturation is at atmospheric pressure.

 

"UPPERMOST AQUIFER" means the geologic formation nearest the natural ground surface that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary.

"VARIANCE" means a permitted deviation from an established rule or regulation, or plan, or standard or procedure, as provided in 7 Del. Code, Chapter 60.

 

"VECTOR" means a carrier organism that is capable of transmitting a pathogen from one organism to another.

 

"VEHICLE" means a motorized means of transporting something. "Vehicle" includes both the motorized unit and all containerized units of a conveyance attached thereto. For purposes of determining whether a transporter qualifies as a "LIMITED TRANSPORTER", motorized units will be counted.

 

"WATER TABLE" means that surface in a ground water body at which the water pressure is atmospheric. It is defined by the levels at which water stands in wells that penetrate the water body just far enough to hold standing water.

 

"WELL" means any excavation that is drilled, cored, bored, washed, driven, dug, jetted or otherwise constructed when the intended use of such excavation is for the location, testing, acquisition or artificial recharge of underground water, and where the depth is greater than the diameter or width.

 

"WORKING FACE" means that portion of a landfill where waste is discharged, spread and compacted prior to placement of daily cover

 

SECTION 4: PERMIT REQUIREMENTS AND ADMINISTRATIVE PROCEDURES

 

A. GENERAL PROVISIONS

1. Permit required

a. No person shall engage in the construction, operation, material alteration, or closure of a solid waste facility, unless exempted from these regulations under Section 2.C, without first having obtained a permit from the Department.

b. No person that is subject to the requirements of Section 7.B or 7.C of these regulations shall transport solid waste in or through the State of Delaware without first having obtained an appropriate solid waste transporter's permit from the Department.

2. Public notice; hearing

Within 60 days after receipt of a completed application and all other required information, the Department will give public notice and the opportunity for a public hearing as provided in 7 Del. Code Ch. 60. The cost of the advertisement shall be borne by the applicant. A 15 day comment period will follow the publication date of each public notice. If no meritorious adverse public comments are received during this period, and the Secretary does not deem a public hearing to be in the best interest of the State, the Department will enter into the permit approval/denial phase. If a meritorious request for a hearing is received during the comment period, or if the Secretary deems a hearing to be in the best interest of the State, a public hearing will be held as provided in 7 Del. Code, Chapter 60, Sections 6004 and 6006.

3. Approval/denial

The Department shall act upon an application for a permit within 60 days after the close of the public notice comment period or upon receipt of the hearing officer's report if a hearing was required. When a final determination is made on an application, the Department shall issue a permit or send a letter of denial to the applicant explaining the reasons for the denial.

4. Suspension, revocation of permit

A permit may be revoked or suspended for violation of any condition of the permit or any requirement of this regulation, after notice and opportunity for hearing in accordance with 7 Del. Code, Chapter 60.

5. Duration of permit

A permit will be issued for a specific duration which will be determined by the Department. In no case will a permit be valid for more than five years.

a. Solid waste facility operating permits (landfills, resource recovery facilities, transfer stations, incinerators) shall not be issued for periods greater than 10 years.

b. Post-closure permits shall be valid and enforceable throughout the entire post-closure period.

6. Permit renewal

Any person wishing to renew an existing permit shall, not less than 90 days prior to the expiration date of that permit, submit a [written request for permit renewal. This request may be in the form of a letter but shall not be combined with correspondence relating to any matter other than the permit renewal] [permit renewal application form, provided by the Department].

In the event that the permittee submits a timely request [application] for permit renewal, and the Department, through no fault of the permittee, is unable to make a final determination on the request [application] before the expiration date of the current permit, the Department may, at its discretion, grant an extension of the permit. If the Department issues an extension, all conditions of the permit, and all modifications previously requested by the Department, will remain in effect, for a period of time which will be determined by the Department.

7. Modification of permit

a. A permittee may request modifications to a permit. All such requests must be submitted in writing to the Department.

b. The Department may initiate modification of a permit if it finds that the existing permit conditions either are not adequate or are not necessary to protect human health and the environment.

c. Public notice and opportunity for hearing in accordance with paragraph A.2. of this Section shall be accomplished for all major modifications proposed for the permit. In the event a hearing is requested or deemed necessary by the Secretary, only the permit conditions subject to the modification shall be reopened for public comment.

d. Public notice shall not be required for minor modifications to the permit. Minor modifications are those which if granted would not result in any increased impact or risk to the environment or to the public health. Minor modifications include but are not limited to:

(1) Changes in operation or design which are not related to pollution control devices or procedures.

(2) Improvements to approved pollution control devices or procedures.

(3) Administrative changes.

(4) A change in monitoring or reporting frequency.

(5) The correction of typographical errors.

8. Transfer of permit

A written request for the transfer of a permit must be submitted to the Department at least 15 days prior to the date of the proposed transfer. The actual transfer will be contingent upon the transferee's meeting all Department requirements; until such time, the original permittee will remain liable regardless of who owns the facility.

9. Enforcement

a. The Department reserves the right to inspect any site, or any vehicle intended for use in the transportation of solid waste, before issuing a solid waste permit for the site or the transporter.

b. The Department may, at any reasonable time, enter any permitted solid waste facility or inspect any vehicle being used in the transportation of solid waste in order to verify compliance with the permit and these regulations.

c. The Department may require such reports, interviews, tests or other information necessary for the evaluation of permit applications and the verification of compliance with the permit and these regulations.

d. Any person using land, or allowing the use of land, for the storage, processing, or disposal of solid waste who violates a requirement of this regulation shall be subject to the provisions of Sections 6005, 6013, 6018, and 6025(c) of 7 Del. Code, Chapter 60.

10. Replacement of Contaminated Water Supplies

If the Department determines, based on information obtained by or submitted to the Department or the Division of Public Health, that any drinking water supply well has become contaminated as a result of the construction or operation of a solid waste facility, the owner or operator of the facility will be required to construct and maintain, at his or her expense, a permanent alternative water supply of comparable quantity and quality to the source before it was contaminated. Such a determination will be subject to the review procedures contained in 7 Del. Code, Chapter 60.

11. Financial Assurance Criteria

a. Applicability and effective date

[(1)] The requirements of this section apply to owners and operators of all solid waste facilities, except owners or operators who are State or Federal Government entities whose debts and liabilities are the debts and liabilities of the State or the United States.

(2) The requirements of this section are effective immediately upon adoption, except the requirements pertaining to sanitary landfills become effective April 9, 1995 (or on any alternate date that the Federal requirements pertaining to financial assurance for MSWLFs become effective).

b. Financial Assurance for Closure, Post-Closure Care, and Corrective Action

(1) The owner or operator of a solid waste facility must provide assurance that the financial costs associated with closure, post-closure care, and corrective action can be met throughout the life of the facility until released from these requirements by the Department after demonstrating successful completion of compliance with the requirements for each of these activities.

(2) The mechanisms used to demonstrate financial assurance under this section must ensure that the funds necessary to meet the costs of closure, post-closure care, and corrective action for known releases will be available whenever they are needed. Owners or operators must choose from the options specified in paragraphs (a) through (i) of this section, and comply with any conditions noted therein.

(a) Trust Fund

Condition 1: The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State of Delaware agency.

Condition 2: The trust agreement shall be worded as prescribed by the Department.

Condition 3: The owner or operator shall submit the receipt from the trustee for the initial payment into the trust fund as well as the originally signed duplicate of the trust agreement for Department approval prior to receiving solid waste, or in the case of an existing facility, prior to the cancellation of the existing financial assurance mechanism.

Condition 4: Pay-in periods and amounts for all solid waste facilities shall be in accordance with those specified in 40 CFR Part 258.74, subsections (a)(2),(a)(3), (a)(4) and (a)(6) or otherwise acceptable to the Department.

Condition 5: Schedule A, attached to the trust agreement, shall list the facility name and address and the current cost estimate. Schedule A must relate the trust agreement to the specific facility and obligation(s) being assured and shall be updated at least annually to account for inflation or other increases to the cost estimate. Costs reflected in Schedule A shall not be reduced without the written consent of the Department.

Condition 6: Schedule B, attached to the trust agreement, shall list the property or money that the fund consists of initially. Property must consist of cash or securities acceptable to the trustee. Other property (e.g. real estate) is not an acceptable payment into the trust fund.

Condition 7: Exhibit A, attached to the trust agreement, shall list the persons designated by the Grantor to sign orders, requests, and instructions to the trustee.

Condition 8: Annual valuation. Annually, the trustee shall furnish to the Department and to the owner or operator, a statement confirming the value of the trust fund. Any securities in the trust fund shall be valued at market value as of no more than 60 days prior to the date the statement is submitted to the Department. If possible, the statement should be submitted during the month that Schedule A is adjusted annually.

Condition 9: The trustee shall make payments from the fund only as the Department directs to provide for the payment for the costs of corrective action, closure, and/or post-closure care.

Condition 10: After beginning closure, post-closure care, or corrective action, an owner or operator or other person authorized in accordance with Condition 7 may request reimbursements for partial expenditures by submitting itemized bills to the Secretary. The owner or operator may request reimbursements for partial closure, post-closure care, or corrective action only if sufficient funds are remaining in the trust fund to cover the maximum costs of completing the activities for which the trust agreement was established. Within 60 days after receiving bills for reimbursable closure, post-closure care, or corrective action activities, the Secretary will instruct the trustee to make reimbursements in those amounts as the Secretary specifies in writing. Reimbursements will be allowed only if the Secretary determines that the partial or final expenditures are in accordance with the approved closure, post closure care, or corrective action plan or are otherwise justified. If the Secretary has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, he/she may withhold reimbursements of such amounts as he/she deems prudent. If the Secretary does not instruct the trustee to make such reimbursements, he/she will provide the owner or operator with a detailed written statement of reasons.

Condition 11: Amendments. The trust agreement may be amended by an instrument in writing executed by the grantor, the trustee, and the Department, or by the trustee and the Department if the grantor ceases to exist.

Condition 12: Irrevocability and termination. Subject to Condition 11, the trust agreement shall be irrevocable and shall continue until termin