Legislation Document

WHEREAS, this Act is brought in memory of a loving mother and friend and will be known as the “Elizabeth Barnes Act”.

NOW, THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each house thereof concurring therein):

Section 1. This Act shall be known and may be called the “Elizabeth Barnes Act”.

Section 2. Amend Part VI, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Chapter 90A. FAMILIES OF SUICIDE VICTIMS

§ 9001A. Declaration of purpose.

The General Assembly declares that it is a benefit to the State to support the families and dependents of individuals who have died by suicide by providing them with assistance similar to that provided to victims of crimes. This chapter establishes a means of meeting the additional hardships imposed upon these families and dependents.

§ 9002A. Definitions.

(1) “Agency” means the Victims’ Compensation Assistance Program under Chapter 90 of this title.

(2) “Business telephone service” means network access telephone service where the use of the service is primarily for business purposes.

(3) “Claimant” means an eligible family member or person acting on behalf of the eligible family member filing a claim under this chapter on behalf of an eligible family member.

(4) “Consumer” means a person who purchases prepaid wireless telecommunications service in a retail transaction.

(5) “Eligible family member” means a spouse, child, parent, sibling, or other legal dependent of an individual who died by suicide within the State of Delaware.

(6) “Prepaid wireless provider” means a person that provides prepaid wireless telecommunications service pursuant to a license issued by the Federal Communications Commission.

(7) “Prepaid wireless telecommunications service” means a wireless telecommunications service that allows a caller to dial 988 to access the 988 system, which service must be paid for in advance and is sold in predetermined units or dollars of which the number declines in a known amount.

(8) “Provider” means a telecommunications service provider, including a wireless provider, any other provider that is required to or opts to provide 988 service, or any intermediate entity or pass-through agent providing telecommunications services. Provider does not include prepaid wireless provider.

(9) “Residential telephone service” means network access telephone service where the use of the service is primarily for social or domestic purposes.

(10) “Retail transaction” means the purchase of prepaid wireless telecommunications service from a seller for any purpose other than resale.

(11) “Seller” means a person who sells prepaid wireless telecommunications service to another person.

(12) “State government” includes any of the following:

a. An office or agency created by the Delaware Constitution or an act of the General Assembly.

b. An office or agency created by an office or agency created by the Delaware Constitution or an act of the General Assembly.

c. A school district or charter school.

(13) “Suicide” means the intentional taking of one’s own life, as listed on the individual’s death certificate.

(14) “Suicide Assistance Fund” means the special fund established under § 9003A of this title.

(15) “Suicide assistance services surcharge” or “surcharge” means the amount imposed by a provider or collected by a prepaid wireless seller under this chapter.

(16) “Wholesale services” means services that a provider furnishes to another provider, rather than to end-use customers.

(17) “Wireless provider” means as defined in § 10002 of Title 16.

(18) “Wireless service” means as defined in § 10002 of Title 16.

§ 9003A. Establishment of the Suicide Assistance Fund.

(a) There is hereby established an appropriated special fund known as the Suicide Assistance Fund that shall be administered by the Agency in accordance with this chapter and other applicable law.

(b) Funds in the Suicide Assistance Fund:

(1) May be used to provide assistance or services to eligible family members as described in this chapter.

(2) Must be administered separately from all other funds administered by the Agency.

(3) Must be invested by the State Treasurer consistent with the investment policies established by the Cash Management Policy Board. The State Treasurer must credit interest to the Fund monthly consistent with the rate established by the Cash Management Policy Board.

(4) May be used to pay for Agency administrative expenses and other disbursements authorized by this chapter.

a. Moneys in the Fund may be expended for any purpose in furtherance of the administration of this chapter.

b. The Director of the Office of Management and Budget may waive the procurement requirements under Chapter 69 of Title 29 for expenditures made from the Fund.

c. The Agency must provide a written report not later than the second Tuesday of January each year to all of the following regarding each expenditure made under the Fund in the previous fiscal year and to what extent the expenditure accomplished the intended purpose of the expenditure:

1. The Governor.

2. The President Pro Tempore and Secretary of the Senate, for distribution to all Senators.

3. The Speaker and Chief Clerk of the House of Representatives, for distribution to all Representatives.

4. The Controller General.

5. The Director and the Legislative Librarian of the Division of Legislative Services.

6. The Director of the Public Archives.

7. The Secretary of the Department of Safety and Homeland Security.

8. The Secretary of the Department of Services for Children, Youth and Their Families.

(c) A surcharge of $0.12 per month is imposed on subscribers of telecommunications services in this State and must be collected and deposited in the Suicide Assistance Fund :

(1) The surcharge must be collected by each provider of residential telephone service, business telephone service, and wireless service as follows:

a. The surcharge must be imposed by each provider providing residential telephone service on all Delaware residential subscribers per residence exchange access line or per basic rate interface (“BRI”) integrated services digital network (“ISDN”) arrangement, where the residence exchange access service is provided via a BRI ISDN arrangement. The surcharge must not be applied to residence exchange access lines provided to Lifeline subscribers.

b. The surcharge must be imposed by each provider providing business telephone service on all Delaware business subscribers per business exchange access line and trunk or per BRI ISDN arrangement where the business exchange access service is provided via a BRI ISDN arrangement. Each Centrex access line must be charged the equivalent of ¹ / ₉ of the surcharge; provided, however, that where a Centrex customer has fewer than 9 lines, the maximum monthly charge for those lines will be the surcharge imposed on each business exchange access line or trunk divided by the customer’s Centrex lines. Each primary rate interface ISDN system must be charged a rate equal to 5 times the surcharge. The surcharge must not be applied to lines provided under wholesale arrangements.

c. The surcharge must be imposed by each wireless provider on all wireless service customers for each wireless telephone number for which the wireless service customers are billed by the provider.

(2) A provider must impose the surcharge on the person purchasing the service and must collect the surcharge on behalf of the State. The surcharge collected by a provider is not subject to taxes or charges levied by the State, or any political subdivision of the State, and the surcharge is not considered revenue of the provider for any purpose.

(3) Each provider imposing the surcharge must state the surcharge as a clearly identifiable, separate item on all subscriber invoices.

(4) Surcharges under this subsection do not apply to wholesale services or to the State government.

(5) A surcharge imposed by this subsection must be collected by providers from subscribers to telecommunications service with each invoice for service and must be paid by providers on a monthly basis to the Department of Finance no later than the fifteenth day of the month following the surcharge’s collection. Any surcharge imposed by this subsection must be deposited into the Suicide Assistance Fund on a monthly basis.

(6) Each provider collecting the surcharge is entitled to recover the actual incremental costs of billing, collecting, and remitting the surcharge, as well as the costs of compliance with any memorandum of understanding as described in paragraph (b)(7) of this section, through a credit against them. This cost is defined as the additional incremental expense incurred by the provider that is in addition to the normal expense of billing and collecting the charges for the provision of the provider’s normal telephone service. Where moneys collected by the provider are equal to or less than the total charge for the telephone service provided to subscribers or customers by that provider, not including the surcharge, all moneys collected will be applied to the charges for the actual telephone service provided.

(7) A provider collecting the surcharge is not responsible for uncollectable surcharges. The State may also enter into a memorandum of understanding with each provider that must include the terms related to the collection and distribution of funds under this chapter and provide for reporting to the Agency the names and addresses of subscribers that fail to pay the surcharge. However, nothing in this chapter may be construed to prevent the State or the Agency from taking appropriate actions to collect the surcharge designated by a provider as uncollectable.

(8) Each provider collecting the surcharge is fulfilling a governmental function and in so doing is immune from suit for damages of any kind and is not liable for refunds except to the extent that the provider has failed to collect or remit surcharges in accordance with the requirements of this section.

(d) A surcharge of $0.12 per month is imposed on each prepaid wireless telecommunications service retail transaction as follows:

(1) The surcharge must be collected by the seller from the consumer for each retail transaction occurring in this State. The amount of the surcharge must be separately stated on an invoice, receipt, or other similar document that is provided to the consumer by the seller.

(2) For purposes of determining whether a retail transaction is subject to the surcharge, the following transactions are deemed to occur in Delaware and are subject to the surcharge imposed under this section:

a. The retail transaction is effected in person by the consumer at a business location of the seller if that business location is in Delaware.

b. The prepaid wireless telecommunications service is physically delivered to a consumer at a Delaware address provided to the seller.

c. The seller’s records that are maintained in the regular course of business indicate that the consumer’s address is in Delaware and the records are not kept or made in bad faith.

d. The consumer gives a Delaware address during the consummation of the retail transaction, including the customer’s payment instrument if no other address is available, and the address is not given in bad faith.

e. The consumer’s mobile telephone number is associated with a Delaware location.

(3) The surcharge is the liability of the consumer and not of the seller or of any prepaid wireless provider, except that the seller shall remit all surcharges that the seller collects from consumers as provided in this section, including all surcharges that the seller is deemed to collect where the amount of the surcharge has not been separately stated on an invoice, receipt, or other similar document provided to the consumer by the seller.

(4) The amount of the surcharge that is collected by a seller from a consumer, if the amount is separately stated on an invoice, receipt, or other similar document provided to the consumer by the seller, must not be included in the base for measuring any tax, fee, surcharge, or other charge that is imposed by this State, any political subdivision of this State, or any intergovernmental agency.

(5) If a minimal amount of prepaid wireless telecommunications service is sold with a prepaid wireless device for a single, nonitemized price, the seller may elect not to apply the surcharge imposed by this section to the retail transaction. For purposes of this paragraph, an amount of service denominated as 10 minutes or less, or $5.00 or less, is minimal.

(6) The surcharge may not be applied to prepaid wireless telecommunications service provided to a person through the Lifeline program.

(7) The surcharge collected by sellers must be remitted to the Division of Revenue within 30 days after the end of the prior quarter.

(8) The Division of Revenue shall establish procedures by which a seller of prepaid wireless telecommunications service may document that a sale is a sale for resale transaction and not a retail transaction.

(9) A seller is permitted to deduct and retain 3% of surcharges that are collected by the seller from consumers.

(10) The surcharge under this subsection does not apply to the State government .

(e) The Department of Finance may adopt regulations or policies and procedures to administer, enforce, and implement this section in addition to the following:

(1) A provider or seller must remit the surcharge on forms authorized by the Director of the Division of Revenue.

(2) Subject to this section, the Department of Finance may make agreements with a provider or seller relating to collecting and remitting surcharges.

(3) To the extent practicable, the audit, appeal, and other administrative provisions of Chapters 3 and 5 of Title 30 apply to the administration of the suicide assistance services surcharge.

(f) The Suicide Assistance Fund is created as a nonappropriated special fund. Balances in the Suicide Assistance Fund on June 30 of each year carry forward and shall not revert to the General Fund.

§ 9004A. Assistance to eligible family members.

(a) Eligible family members may receive financial assistance or other services from the Agency after filing a claim under § 9012 of this title, including:

(1) Mental health counseling and psychiatric care.

(2) Funeral expenses, not to exceed $5,000.

(3) Burial expenses, not to exceed $2,500.

(4) Temporary housing, not to exceed $1,500.

(5) Moving expenses, not to exceed $1,000.

(6) Suicide scene cleanup, not to exceed $1,000.

(7) Lost wages of parents or others charged with the care, custody, or guardianship of the children or legal dependents of the individual who died by suicide, while providing care for those children or legal dependents of the individual who died by suicide.

(8) Loss of support for eligible family members, not to exceed $3,000, when all of the following are established:

a. The individual who died by suicide was gainfully employed or had other legal income at the time of death.

b. The eligible family member is fully or partially dependent on the income of the individual who died by suicide.

c. The eligible family member no longer receives income from the individual who died by suicide.

(9). Child care, not to exceed the child care deposit plus 2 months of care by a state-approved or licensed day care provider.

(10) Medical expenses.

(11) Nonmedical remedial care and treatment rendered in accordance with a religious method of healing.

(12) Hospital expenses.

(13) Other support services deemed necessary and appropriate by the Agency.

(b) The Agency must promulgate rules and regulations to investigate and administer all claims made under this chapter.

(c) Claimants may request reconsideration of a decision by the Agency within 30 days after the date the Agency decision is mailed. Requests for reconsideration shall follow the process established under § 9012 of this title.

(d) Claims made under this chapter shall be paid out after all other sources of victim compensation are exhausted, including life insurance, health insurance, and homeowner’s insurance.

§ 9005A. Reporting and Accountability.

The Agency must include in its annual report a section on the activities and expenditures of the Suicide Assistance Fund, detailing the services provided, the number of families assisted, and the sources of funding.

§ 9006A. Applicability of existing Agency laws, rules, and regulations to this chapter.

(a) Unless otherwise indicated by the Agency, all existing Agency rules and regulations shall apply to claims made under this chapter.

(b) Claims made under this chapter shall receive the same protections and be subject to the same penalties provided under §§ 9013, 9015, and 9020 of this title.

Section 3. § 9004A of Title 11, as contained in Section 2 of this Act, takes effect on January 1 following its enactment into law. The remainder of this Act takes effect upon enactment.

SPONSOR:	Rep. Morrison & Sen. Mantzavinos
Reps. Lynn, K. Johnson, Neal, Ortega, Burns, Ross Levin; Sens. Huxtable, Lockman, Sturgeon, Poore, Hoffner, Pinkney, Cruce