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Executive Summary
The Sunset Law in Delaware, Chapter 102 of Title 29, enacted in 1979, provides for the periodic legislative review of state agencies, boards, and commissions. The purpose of sunset review is to determine if there is a public need for an agency, board, or commission and, if so, to determine if it is effectively performing to meet that need. Typically, agencies are reviewed once every six years.
The Joint Sunset Committee (JSC) is responsible for guiding the sunset review process. The JSC is a bipartisan committee comprised of ten legislators. Five legislators are from the Senate and appointed by the Senate President Pro Tempore and five legislators are from the House of Representatives and appointed by the Speaker of the House.
Sunset reviews are generally conducted over a ten to twelve month time period commencing in July. A comprehensive review of each agency, based on statutory criteria, is performed by the Executive Director of the JSC, who subsequently prepares the Draft Report for use by the JSC during public hearings. Public hearings are scheduled and serve as a critical component of the sunset review process, as they provide an opportunity for the JSC to best determine if the agency is protecting the public’s health, safety, and welfare.
At the conclusion of a sunset review, the JSC may recommend the continuance, consolidation, reorganization, transfer, or termination (sunset) of an agency, board, or commission. Although the JSC has sunset several agencies since its first reviews in 1980, the more common approach has been for the JSC to work with the entity under sunset review to formalize specific statutory and non-statutory recommendations with the goal of improving the entity’s performance and government accountability.
2010 Sunset Reviews
This report details the work of the Joint Sunset Committee from June 2009 through May 2010. Specifically, it focuses on the following entities:
Board of Dental Examiners
Board of Massage and Bodywork
Delaware Health Information Network
Delaware Higher Education Commission
Newark Housing Authority
Victims' Compensation Assistance Program (Formerly the Violent Crimes Compensation Board continued from 2009 JSC review)
Inactive Boards/Commissions/Councils:
Council on Environmental Control, Title 29 §8015
Council on Soil and Water Conservation, Title 29, § 8013
Delmarva Advisory Council, Title 29, Chapter 111
Guide to this Report
The Executive Summary includes the Recommendations made by the Joint Sunset Committee. In the Final and Interim Reports, the Executive Summary is followed by the individual agency reports that were drafted by the Executive Director of the Joint Sunset Committee. These reports were referenced by the Joint Sunset Committee during public hearings and facilitated the development of the Committee’s Recommendations.
Summary of 2010 Joint Sunset Committee Actions
The Joint Sunset Committee held public hearings regarding the Board of Dental Examiners, Board of Massage and Bodywork, Delaware Health Information Network, Delaware Higher Education Commission, and the Newark Housing Authority. As a result of the public hearings and subsequent Committee meetings and deliberations, the Joint Sunset Committee recommended continuation of the Board of Dental Examiners, Board of Massage and Bodywork, Delaware Higher Education Commission and the Newark Housing Authority, provided that each entity complies with the Committee’s Recommendations and submits the mandated progress reports.
On May 20, 2010, the JSC adopted Recommendations regarding the Delaware Health Information Network and voted to hold its review of the Delaware Health Information Network over until 2011. The Delaware Health Information Network shall comply with the Committee’s Recommendations and submit the mandated progress reports.
In 2009, the JSC voted to reorganize and rename the Violent Crimes Compensation Board. The Victims’ Compensation Assistance Program (VCAP) was established and the Department of Justice was given oversight of VCAP. The role of the Board changed to an appeals Board and the office moved from a rented office space to its new location in the Carvel State Office Building. An Advisory Council was created by statute to work with VCAP staff and key members of both state and local government, advocacy groups and victim related task forces. The Advisory Council’s purpose is to provide accountability, suggestions for improving services, and guarantee a flow of information to the public on both accessing compensation and the application process. This Council has met and is in the process of discussing statutory changes pursuant to the 2009 JSC recommendations. Legislation is being drafted. VCAP is in the process of making changes to its rules and regulations. In May 2009, the sunset review of VCAP was held over until 2010. VCAP provided the JSC with the required progress reports. This was a major reorganization and as such, in April 2010, the JSC determined that the changes are progressing very well, however it is a work in progress and there are still issues to work out in regulation that may require accompanying legislative changes. The JSC voted to hold the sunset review of VCAP over until 2011, in an effort to continue to monitor VCAP’s progress. VCAP shall continue to submit the mandated progress reports.
In the spring of 2009, the Committee received a list of inactive Councils from the Governor’s Office. The Committee notified each oversight agency that the Committee intended to sunset each inactive Council on June 30, 2010. Each agency responded to the Committee indicating that the Council was in fact inactive and the Committee held a public hearing in regard to these entities. In April 2010, the Committee voted to sunset the Council on Soil and Water, the Council on Environmental Control, and the Delmarva Advisory Council on June 30, 2010.
2010 Recommendations:
Board of Dental Examiners
The Joint Sunset Committee recommends continuance of the Board of Dental Examiners, but only upon its meeting certain conditions or making certain modifications as identified below.
A. The Joint Sunset Committee recommends the following statutory changes:
Amend the statute by striking 24 Del. C.§1131 in its entirety and stating in 24 Del. C. §1126 that the Division of Professional Regulation issues duplicate licenses.
Amend the statute by moving the other paragraphs in 24 Del. C. §1131 to §1129.
Amend the statute by deleting the outdated wording regarding the duties of the Secretary Treasurer of the Board to enforce provisions in 24 Del. C. § 1181.
Amend the statute to allow the Board the power to subpoena records of hospitals as the Committee has done for the Board of Medical Practice. Add to its powers and duties the following language: “To require the production of and receive information regarding changes in hospital privileges as a result of disciplinary or other adverse action taken by a hospital, or regarding disciplinary or other adverse action taken by a dental society against any person certified under this chapter to practice dentistry or dental hygiene.”
Amend the statute to reorganize and modernize statutory provisions similar to other Title 24 Boards.
Amend the provisions relating to name(s) used in the practice of dentistry.
Amend 24 Del. C.§1101(7) by inserting “and/or periodontal disease” after the word “caries”.
Amend the statute by removing the provision under 24 Del. C. §1106(a)(14) referencing preceptorships and reciprocity as there are no such programs offered by the Delaware Institute of Dental Education and Research (DIDER).
Amend the statute by deleting the provision under 24 Del. C. §1105 (b)(4) pertaining to the original members of the Dental Hygiene Advisory Committee.
Amend the statute by deleting the word “certificate” from 24 Del. C. § 1178.
Amend the statute by reorganizing the reinstatement provisions following suspension or probation from 24 Del. C. §1131 to 24 Del. C. §1129 for consistency.
Change the title of §1131 from “Reinstatement of a suspended license; removal from probationary status; replacement of license” to “Replacement of license”.
Amend the statute to require an applicant to affirm at the time of application that he/she is physically and mentally capable to engage in the practice of dentistry, and to submit to such examinations as deemed necessary to determine the applicant’s capability. Insert the following language from Board of Medical Practice:
(5) Submit to the Board a sworn or affirmed statement that the applicant is, at the time of application, physically and mentally capable of engaging in the practice of medicine according to generally accepted standards, and submit to such examination as the Board may deem necessary to determine the applicant's capability;”.
Amend the statute to reconfigure the examination provisions under 24 Del. C. §1123 and explicitly require that the college/university be accredited by the Commission on Dental Accreditation of the American Dental Association.
Amend the statute to clarify reciprocity provisions that a reciprocal applicant shall have a degree from a dental college or university accredited by the Commission on Dental Accreditation of the American Dental Association.
Amend the statute to clarify that a licensee who fails to renew on or before the renewal date, and any allowable extension, not to exceed 1 year, will be considered a new applicant.
Amend the statute to provide established requirements for re-examination or other assessment of formal competency when a licensee fails to renew and his/her license has been expired for a period of 5 or more years.
Amend the statute to increase monetary penalties under 24 Del. C. §1129, §1175, §1177, §1178 and striking §1176 and renumbering sections.
Amend the statute to clarify the qualifying language in the exception provision that dentists in another state can make clinical demonstrations without a license, for educational purposes.
Amend the statute by adding language under §1122(b)(2) that gives the Board authority to determine, after a hearing, whether administrative penalties are grounds to deny licensure. This discretion to license after a hearing is language consistent with other Title 24 boards and commissions.
Amend the statute by deleting the sunset provision in Subchapter VI and change the title of Subchapter VI to read: “Out-of-State Volunteer License”.
Amend the statute (29 Del. C. § 8735) to allow the Division of Professional Regulation to issue licenses with specific provisions listed.
Amend the statute by removing the reference (24.Del. C § 1123 (2)) to the passing score on the National Board of Dental Examiners’ examination as the national board is moving to a pass/fail score.
Amend the statute to grant the Board the authority to conduct criminal background checks for applicants. Statutory language shall be the same as that of the Board of Medical Practices. (24 Del. C. Subchapter IV. Note Subchapter IV is currently being amended. The language inserted in the Board of Dental Examiners’ chapter shall include Subchapter IV as amended in the 145th General Assembly)
24 a). Amend the statute to include the following language:
§_____Duty to Self-Report
(a) A licensee shall self-report to the Board:
(1) An arrest and/or the bringing of an indictment or information charging the licensee with a crime substantially related to the practice of dentistry and dental hygiene as defined in the Board’s rules and regulations.
(2) The conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any crime substantially related to the practice of dentistry and dental hygiene as defined by the Board in its rules and regulations.
(b) The report required by this section shall be made in writing within 30 days of the date of the arrest, bringing of the indictment or information or of the conviction.
(1) Failure to make a report constitutes grounds for discipline under 24 Del. C.§1128.
25. Amend the statute by adding the following language to 24 Del. C. § 1105(c)
(4) Voting on disciplinary actions involving hygienists; and
(5) Voting on other matters involving the policy and practice of dental hygiene as defined in §1101(7) and further defined in the Board’s rules and regulations. The Committee shall not vote on matters involving changing the scope of practice as defined in §1101 (7).
26. Amend the statute by deleting 24 Del. C. § 1105(b)(4) and renumbering the subsequent provisions accordingly. (4) Persons who are members of the Committee on May 15, 1997, shall complete their terms.
Amend the statute to include a provision that a dentist and a dental hygienist from the same practice or two dentists from the same practice may not serve on the Board at the same time.
Amend the statute to include a provision that two dental hygienists from the same practice may not serve on the Advisory Committee at the same time.
Amend the statute to include a provision that a dentist and a dental hygienist from the same practice may not serve on the Board and/or the Advisory Committee at the same time.
Amend the statute to provide that the Board has the authority to establish by rule and regulation three levels of supervision.
Amend the statute by incorporating language into the Code that allows dentists to have direct supervision of dental assistants.
Amend the statute to provide a definition for “dental assistant”.
Amend the statute to provide definitions for “dental technician” and “dental auxiliary personnel.” Clarify the difference between the roles of a “dental technician” and “dental auxiliary personnel”.
Amend the statute to include a duty to report as is included in the Medical Practices Act (24 Del. C. Ch. 17). Further amend the statute to reflect any applicable changes to Duty to Report portion of the Board of Medical Practices (24 Del. C. Ch. 17).
Amend the statute by changing the name of the Board from “The Board of Dental Examiners” to “The Board of Dentistry and Dental Hygiene” wherever it appears in the chapter.
35. Amend the statute to provide the Board with the authority to establish by rule and regulation the requirements and standards for permits that authorize dentists to administer anesthetic agents.
The Joint Sunset Committee recommends that the Board of Dental Examiners do the following:
Amend the rules/regulations by removing the reference (Reg. 8.0) to the passing score on the National Board of Dental Examiners’ examination as the national board is moving to a pass/fail score.
Delete Regulation 4.0 relating to acupuncture.
Strongly encourage the Board to ensure that Delaware’s minimum standards of practitioner competency and delivery of dental and dental hygiene services are in line with those nationally to ensure the highest level of public protection.
The Board of Dental examiners shall inform the JSC of any progress made either in implementation or consideration of an ongoing assessment of continuing competence and quality of care provided by dentists.
The dentists and the dental hygienists discuss the delivery of local anesthesia by dental hygienists and report back to the JSC.
“General supervision” will remain as it is currently defined and applied in Regulation, until the Board provides the JSC with information defining how dental hygienists can/will practice in a public setting (i.e. schools, nursing homes, etc.) (Regulation 1.3 General Supervision - A dentist may or may not be present in the office while the work is performed. The dentist authorizes the work to be performed. Emergency care and consultant services are provided by an "on-call" dentist not present in the treatment facility, if the primary dentist is not present.)
The dentists and dental hygienists continue to meet to discuss the dental hygienists’ examination/licensure, including issues concerning whether a dental hygienist can be newly licensed in Delaware, either upon satisfactory completion of a regional exam or satisfactory completion of the Delaware exam and report back to the JSC regarding these discussions.
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2010 Recommendations:
Board of Massage and Bodywork
The Joint Sunset Committee recommends continuance of the Board of Massage and Bodywork, but only upon its meeting certain conditions or making certain modifications as identified below.
A. The Joint Sunset Committee recommends the following statutory changes:
Amend the statute to read “massage AND bodywork therapists”.
Amend the statute to allow the Board the authority to require criminal background checks for new applicants as a healthcare profession.
Amend the statute to specify in 24 Del. C. §5310 that out of state licenses must be in good standing and clarify and clean up the other provisions within that section.
Currently, the requirements for licensure are set forth at 24 Del. C. §5308 (therapists) and 24 Del. C. §5309 (technicians). These sections do not include criminal history as an item to be addressed in considering an application. 24 Del. C. §5313 is entitled “Grounds for refusal, revocation or suspension of licenses and certificates. This section should be entitled “Grounds for discipline.” Any grounds for denial of licensure should be set forth in Sections 5308 or 5309. “Grounds for discipline” should be expanded to include items such as the illegal, incompetent or negligent practice of massage and bodywork.
The Board’s statute lacks a “misconduct” provision as a reason to take disciplinary action against a licensee for allegations of unprofessional conduct, which most other Title 24 statutes contain. Add another “Grounds for Discipline” as follows:
-“Has been guilty of unprofessional conduct as adopted in rules and regulations hereto. Unprofessional conduct shall include departure from or failure to conform to the national code of professional ethics and standards of acceptable massage and bodywork practices.”
Amend the statute to provide the Board with the authority to fine licensees found guilty of disciplinary violations. Consistent with other Title 24 Boards and Commissions:
§ 5315. Disciplinary sanctions.
(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that any of the conditions or violations set forth in § 5313 of this title applies to a practitioner regulated by this chapter.
(6) Impose a monetary penalty not to exceed $500 for each violation.
Amend the statute by deleting 24 Del. C §5303(e) as it relates to appointment of the initial members of the Board.
Amend the statute by deleting 24 Del. C. §5315(a)(2) as it relates to the disciplinary sanction “Publicly censure a practitioner;”.
Amend the statute to give the Division of Professional Regulation the authority to issue licenses/permits/ certificates (for all Title 24 Boards) in cases where the licensing requirements are straightforward and when there are no questions, issues or concerns on the application. (29 Del. C. § 8735(a)). This provision will be done as a separate bill and will address all Boards/Commissions in Title 24.
Amend the statute to require the same ethics, law and contraindications in permanent licensure as is required in temporary licensure.
Amend the statute to provide for a single tier system with a 3 year window of grace for massage technicians. During that period of time for which they are not going to have to increase their clinical didactic hours but would use the time instead of taking CE’s to go toward preparing for the state licensing exam or opt for the National exam.
Review the second paragraph of 24 Del. C. § 5302(6) and add clarifying language to make sure that the individuals that are intended to be covered are covered by that provision and the individuals that are intended to be excluded are excluded consistent with the DAG’s explanation that people receiving compensation for a massage should be covered under the statute.
Amend the statute (§ 5303 (b)) to provide that upon enactment of single tier licensure, the phrase, “Two of whom shall be massage and bodywork therapists licensed under this chapter;” will read “four of whom shall be massage and bodywork therapists licensed under this chapter;” and the phrase “2 shall be massage technicians, certified under this chapter” shall be deleted. The remaining text in that section is not being amended.
“(b) The Board shall consist of 7 members appointed by the Governor, who are residents of this state: Two Four of whom shall be massage and bodywork therapists licensed under this chapter; 2 shall be massage technicians, certified under this chapter; and 3 shall be members of the public. The public members shall not be, nor ever have been, massage and bodywork therapists, massage technicians, nor members of the immediate family of a massage and bodywork therapist or massage technician; shall not have been employed by a massage and bodywork therapist or massage technician; shall not have a material interest in the providing of goods and services to massage and bodywork therapists or massage technicians; nor have been engaged in an activity directly related to massage. The public members shall be accessible to inquiries, comments and suggestions from the general public.”
The Joint Sunset Committee recommends that the Board of Massage and Bodywork do the following:
Examine the feasibility of regulating the emerging field of bodywork modalities. The general public does not understand the educational levels that different bodywork modalities require. The Board should consider different modalities and determine the need or necessity of regulating emerging bodywork modalities to ensure public safety.
Consider other national certifications that offer national exams to bring other options for applicants. At this time the Board is keeping an open mind about future national certification programs that would give the Board the freedom to accept other practitioners by reciprocity and allow current practitioners to seek national recognition by their peers and clients.
Establish Rules and Regulations regarding treatment of minors in a massage and/or bodywork setting. The Division of Professional Regulation will provide draft language. If a bill is necessary, it can be a separate bill from Massage and Bodywork and address all related Boards/ Commission in Title 24).
Explanation about why the Board’s temporary certification requires ethics, law and contraindications are not required in permanent licensure. The Board replied that it was not aware that these provisions were not required in permanent licensure but it will add these provisions to the statute.
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2010 Recommendations:
Delaware Higher Education Commission
The Joint Sunset Committee recommends continuance of the Delaware Higher Education Commission, but only upon its meeting certain conditions or making certain modifications as identified below.
A. The Joint Sunset Committee recommends the following statutory changes:
Rename the Higher Education Commission the “Higher Education Office.” The Office will continue to be an office within the Department of Education. The employees of which would continue to be compensated according to Department of Education pay scales. The Office would remain as a stand alone budget unit within the Budget Bill. The Commission itself, not the agency, will be dissolved. The roles and responsibilities of the Higher Education Commission will be transferred to the Office. All duties and responsibilities that were not adopted by the current Higher Education Commission will be statutorily transferred to the Department of Education.
Amend the statute as necessary to provide the technical change required for each of the following:
Critical Need Scholarship. Issue: This section falls under Professional Incentive Programs that are technically loan programs. This program is a reimbursement to the teacher after the coursework is completed and is never considered to be a loan. This section should be placed elsewhere in the Chapter.
Michael C. Ferguson Achievement Awards. Issue: Although this scholarship program is listed under the section regarding memorial scholarships, the program does not follow the statutory language under §3441. Awards.
Engineering and Applied Science Recruitment Fund. Issue: There are currently two organizations receiving funding for this program (FAME - Forum to Advance Minorities in Engineering, and MERIT – Minority Engineering Regional Incentive Training). Both of these receive an appropriation based in epilogue language each year in the Annual Appropriations Act in what results to simply being a pass-though grant. There is no designated “fund” as referred to in statute.
Amend the statute to provide that the Higher Education Office, subject to approval by the Secretary of Education, shall appoint a member to serve on DIMER. (16 Del. C. § 9906(b)).
Amend the statute to provide that the Higher Education Office, subject to approval by the Secretary of Education, shall appoint a member to serve on DIDER. (16 Del. C. § 9941(b)).
Amend the statute to provide that the Higher Education Office, in conjunction with the Department of Education, shall appoint one member of the public to serve on the Delaware College Investment Plan in lieu of the Chairperson of the Higher Education Commission. (14 Del. C. § 3484(b)(3)).
The Joint Sunset Committee recommends that the Higher Education Office do the following:
The Higher Education Office, in conjunction with the Department of Education, shall develop state-level strategic plans for higher education.
The Higher Education Office, in conjunction with the Department of Education, shall develop statewide policies guiding higher education institutions.
The Higher Education Office, in conjunction with the Department of Education, shall develop better business relationships (site visits to schools) with high school guidance counselors, college and university admissions staff and other community agencies that support enrollment of the low-income, first generation, and non traditional population seeking college entry or retraining to highlight the Higher Education Commission’s scholarship opportunities.
The Higher Education Office, in conjunction with the Department of Education, shall continue to broaden the extent of outreach opportunities making better use of technology for outreach purposes (Web 2.0.).
The Higher Education Office shall provide regular communication of agency mission, vision and objectives through the agency to the public.
The Higher Education Office, in conjunction with the Department of Education, shall perform a comprehensive evaluation of the scholarship programs to determine effectiveness of the programs.
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2010 Recommendations for the DHIN
On May 20, 2010 the Joint Sunset Committee voted to hold its review of the Delaware Health Information Network over until 2011. Additionally, the Committee issued the following Recommendations for the Delaware Health Information Network:
The Joint Sunset Committee recommends the following statutory changes:
1. Amend the statute to provide state fiscal oversight of the DHIN.
B The Joint Sunset Committee recommends that the Delaware Health Information Network do the following:
Management should immediately implement control procedures to ensure that all DHIN financial information reported to stakeholders is reconciled to both DFMS and the project management system.
Management should provide complete and timely reporting of the DHIN financials. Reporting should include budget to actual reports of revenue and expenditures and include progress reports that detail projected timelines.
Comply with state law and enforce the reporting requirements of the Bond Bill.
Management should implement a sustainability plan and corresponding business plan that will ensure financial viability into the future.
Research and explore long-term care and home health care opportunities to expand DHIN across the continuum of care.
Explore the functionality that will help practices that are not ready to embrace technology and the financial investment meet the “meaningful use” criteria in ARRA (stimulus) in order to qualify for Medicare/Medicaid incentive payments and report back to the JSC regarding the DHIN’s continuing progress.
Define an appropriate and cost-effective approach to implementing electronic eligibility verification and claims submission through DHIN as required by the State Health Information Exchange Cooperative Agreement Program under ARRA and report back to the JSC
Continue to demonstrate the value of health information exchange and attempt to connect all hospitals in the state to DHIN.
The DHIN provide the JSC with reports making sure that those challenges with regard to the signatures between the Delaware Health Care Commission and the Department of Health and Social Services be addressed.
Develop a conflict of interest policy.
Develop a process for measuring how the DHIN is keeping up with the latest technology.
Develop skills sets for Board appointees.
Develop a policy for performance evaluation and bonus structure evaluation for employees.
Develop a policy for performance evaluation and bonus structure evaluation for contracted employees.
Report back to the JSC relating to the process for reimbursing a funding source (i.e. hospitals, labs, etc.) and discussions/advancement regarding the development of a policy for reimbursement.
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2010 Recommendations:
Newark Housing Authority
The Joint Sunset Committee recommends continuance of the Newark Housing Authority, but only upon its meeting certain conditions or making certain modifications as identified below.
A. The Joint Sunset Committee recommends the following statutory changes:
Amend the statute to expand the Board to 7 members and that the 7th member shall be appointed by the Mayor of the City of Newark.
Amend the statute by deleting the current political provision regarding the makeup of the Board.
Amend the statute to change the term from 6 years to 3 years.
Amend the statute by adding provisions regarding the removal of members.
(Language from Board of Nursing Home Administrators)
- The Appointing Authority may suspend or remove a member of the Board for misfeasance, nonfeasance, malfeasance, misconduct, incompetence, or neglect of duty. A Board member may appeal any suspension or removal to the Superior Court.
-- Any member, who is absent without adequate reason for 3 consecutive meetings, or who fails to attend at least half of all regular business meetings during any calendar year, shall be guilty of neglect of duty.
The Joint Sunset Committee recommends that the Newark Housing Authority do the following:
The Board of the Newark Housing Authority advise the appointing authority of skill sets needed for the appointment of new Board members.
Develop a policy that provides that Commissioners attend ethics training, Board training, Board member conduct, other NAHRO trainings as well as training in the areas of parliamentary procedure, the role of the Board and the role of the Executive Director.
Adopt a policy regarding Commissioners’ involvement with day-to-day operations of NHA office; including Commissioner’s involvement with clients.
Adopt a conflict of interest policy.
Adopt an ethics policy for Board members.
Adopt a policy regarding Commissioner performance evaluations.
Adopt a written RFP policy with minimum standard requirements; if applicable, in consultation with the State Office of Management and Budget (OMB).
Establish specific transparency goals for the NHA and a mechanism to insure that these goals are being met. (May require further action by the JSC)
Clearly define the role and relationship of the Executive Director and the Board (in general).
Develop a policy (incorporating HUD policy) that denotes what is considered day to day operating business within the NHA that the Board members cannot be involved with and what is Board business.
Establish a policy for Commissioner attendance at HUD meetings/discussions with the Executive Director.
Establish a Board policy/or abide by HUD policy if applicable with regard to documents being submitted to HUD and Board approval/oversight/comment.
Require that Board members and the Executive Director attend a workshop on tenants’ rights given by the State Housing Authority or other similar entity.
Provide the JSC with a copy of the contract for the Executive Director.
Develop a policy regarding performance evaluation of Executive Director.
Include a provision that all Commissioners shall be present during the evaluation.
Develop a policy for Board oversight of Executive Director.
Improve communication between Executive Director and Board members (i.e., e-mail updates, timely delivery of documents to Board members for their review).
Develop Performance Goals for Executive Director.
Develop a policy regarding performance evaluation of the NHA as an entity.
Develop a policy for hiring accountant, legal counsel and other services/RFP process.
Develop a process/timetable to evaluate outside contractors such as accountant, attorney, etc. All Board members should be present for each such evaluation.
Record all meetings. Minutes do not have to be transcribed but if a question arises, the Board can refer back to the recording.
Encourage the Board to hold meetings in the evening to allow more resident participation and also to increase the pool of candidates who may want to serve on the NHA Board.
Create a policy regarding minutes of Executive Session pursuant to FOIA.
Include the Board’s intent to hold an Executive Session and state the reason for the Executive Session pursuant to FOIA on the Meeting agenda.
Include the reason for the Executive Session in the meeting minutes.
Provide annual FOIA training for Commissioners by the Attorney General's office.
Assess institutional changes that could enable the NHA to better perform to meet the important needs for affordable housing.
Improve communication with the community/residents.
Update and maintain the NHA website.
Make efforts to partner/coordinate services with community agencies, resident groups, non-profit agencies, affordable housing advocates, the University of Delaware, Legal-Aid, as well as the Delaware State Housing Authority and other state/local/regional housing authorities.
The NHA and the Board ensure the consistency of the legal requirements and what is contained in the guidebook to make sure they are consistent. NHA should ensure that the handbook accurately reflects what is contained in the lease.
Direct NHA to ensure that the provisions in the lease comply with the Federal and State laws' Constitutions.
The Newark Housing Authority report back to the JSC by May 15, 2010, concerning specific language addressing JSC Recommendations #32 and #33.
The Board of the Newark Housing Authority look at the situation after the Public Integrity Commission looks at the situation, and report back to the JSC with the Commission’s findings and the rational for those findings with any of the potential individuals that have been investigated for the conflict, recusing themselves from any of the determinations made; and report back to the JSC with the Board of the Newark Housing Authority’s findings, and perform such investigation in accordance with both the HUD and the Newark Municipal conflict of interest guidelines.
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2009 Recommendations for the Victims' Compensation Assistance Program (formerly known as Violent Crimes Compensation Board)
The Joint Sunset Committee voted to terminate the Board UNLESS certain modifications are made by legislation within a specified period of time to reorganize the Board. As such, the Joint Sunset Committee will continue its sunset review of the Violent Crimes Compensation Board into the year 2010. The Joint Sunset Committee issued the following Recommendations:
Board Structure
The decision making would be made by the staff with oversight/approval by Executive Director.
The Executive Director would perform program management, claim decision making, oversight of process, and staff supervision.
Allow Executive Director to make emergency authorizations for compensation.
Reconsideration stage at the paper level to allow staff/Executive Director to reconsider new information for a claim without the need for the victim to appear before the Appeals Board.
The role of the Board would become that of an Appeals Board.
The current Board members would serve out their existing term and continue to receive statutory compensation. Upon expiration of term, compensation would be $100 per day.
a. Upon expiration of existing member terms or vacancy, the Governor would be encouraged to appoint Appeal Board members to comply with the following:
(3) members that represent the medical, mental health and law enforcement fields and
(2) members at large.
The Appeals Board shall include members from all 3 counties and the City of Wilmington.
Members of the Appeals Board shall be confirmed by the Senate.
Establish an Advisory Council with VCCB staff and key members of both state and local government, advocacy groups, victim related task forces, medical, mental health and law enforcement fields to be appointed by the Governor. This Advisory Council would work to provide accountability, suggestions for improving services, and guarantee a flow of information to the public on both accessing compensation and the application process.
Members of the Advisory Compensation Assistance Program Advisory Council shall be appointed by the Governor and shall include the following 11 members:
The Attorney General or his/her designee;
The Chairperson of the Victim’s Rights Task Force or his/her designee;
One member of the medical profession;
One member of the mental health profession;
The Chairperson of the Domestic Violence Task Force or his/her designee;
The Chairperson of the Sexual Assault Network of Delaware or his/her designee;
One law enforcement police based advocate ;
One member of the public from the City of Wilmington; and
Three members of the public, one from each county.
Place the VCCB under the auspices of the Department of Justice.
Place Appeals Board, Executive Director and staff under a Division Director.
Change the physical location of the VCCB offices to be housed within the Department of Justice.
Enactment dates:
Establish July 1, 2009 as the date upon which the VCAP will be placed within the DOJ.
Legislation drafted to create the Advisory Council on July 1, 2009 and allow for the appointment of the 11 Advisory Council members by the Governor.
Legislation to provide for the effective date for new process and procedures under VCAP to be 30 days after enactment of the bill.
Upon the effective date all new and pending claims will be processed through the newly established VCAP.
The Executive Director and staff will serve as support for the Advisory Council and will continue as support for the Board, which will be an appellate body.
The DOJ and current Board will arrange for movement of office between July 1, 2009 and Oct. 15, 2009.
DOJ victim service staff and the current VCCB staff will coordinate efforts to provide intake person in all 3 counties, until such time as VCAP staff are available to work on a regular basis in Kent and Sussex.
Rename the entity the “Victims Compensation Assistance Program”.
B. The Executive Director Shall:
The Executive Director shall develop a more efficient method of tracking and receiving payment of 18% surcharge and court restitution. The process needs to be consistent and trackable. The Executive Director shall report back to the JSC in the Progress Report regarding the progress of this recommendation.
C. The Victims Compensation Assistance Program shall:
1. Continue to promulgate rules and regulations new/revised pursuant to the Administrative Procedures Act.
VCAP shall provide the JSC with a status update of the pilot program with the Office of Court Collection regarding payment of restitution and the 18% surcharge.
VCAP shall provide the JSC with recommendations as to how to address the lack of technology and the need for better accounting procedures.
VCAP shall develop a new automated client claims tracking system which replaces the current access data base and has the ability to communicate with the states accounting system (DFMS) to verify that the checks have been issued accurately and timely to pay the approved claims.
Develop more training programs and training opportunities for the Board and staff.
The process must be more user friendly to ensure that victims are not further traumatized by a process that is supposed to help them.
Improve and increase outreach. Update brochures, offer workshops, forums and meetings.
Clarify the application process and covered benefits to make them easier to understand.
Improve the Board’s website to include notices/agendas, access to meeting minutes and a user friendly description of application process and covered benefits.
Post meeting notices/agendas on the State online calendar of events.
Make the victim compensation claim form available on the Board’s website.
Explore the option of allowing a victim to file a claim for compensation electronically.
Delete the notary requirement on the application.
Implement a customer service survey card.
Clarify what is policy and what is a regulation.
Create a policy and procedure manual to include, but not be limited to: regulations, internal operations procedures and the policies used to make awards to victims.
Once complete, share this manual with the advocacy community.
D. Statutory Changes
Rewrite the governing statute in its entirety.
Delete statutory language establishing terms for the initial Board.
Amend Section 9004. Functions of the Board.
Amend the statute to remove the Vice-Chair position.
E. Action by the Advisory Council
The Advisory Board shall review this issue and report back to the JSC in the Progress Report. Provide flexibility regarding the 72 hour rule AND the “one year” rule needs to be given to victims of domestic violence. Physical, emotional and sexual abuse usually happens over a period of time before a woman has the courage to report it. There are also women who may make a report but refuse to sign the police report out of fear of retaliation by offender, fear of losing their only support, and death threats to them or their family. Perhaps this could be explained on the new Mental Health form, if there needs to be special exceptions to victims of abuse.
The Advisory Board shall establish a time frame in which a decision must be made after receiving the application and mental health form. The Advisory Board shall report back to the JSC in the Progress Report with regard to this recommendation.
Section 9002 and specifically 9002 (7) should be reviewed for clearer language regarding the benefits.
Additional language regarding the dollar amount or length of the benefit should be included in legislation or in new regulations.
Section 9006 a (4) and a (5) should also be reviewed in the context of new legislation. Many states have filing deadlines which are either two years or more or they have more flexible standards for the staff to waive the one year filing deadline. Section 9006 (a) (5) is another current barrier which needs to be looked at especially for sexually and physically abused children and victims of domestic violence. The 72 hour police report requirement is a barrier in some cases which the staff should be able to waive or the new legislation should have a more liberal time frame and also clear exceptions. (When DFS is involved or Family Court) Victims of domestic violence are a good example.
9007 (d) should be reviewed in light of other states maximum payment limits and given the Compensation Funds current balances. Many states have a benefit limit over $25,000. This should be discussed with the new legislation and new model.
9007 (d) should be looked at to clearly define what is permanently and totally disabled in light of being the payer of last resort and should require the victim to have applied to DOL Social Security of SSI and /or SSDI.
Review Section 9019 regarding forensic medical exam with input from the hospitals and the SANE nurses to ensure the language is still appropriate to cover payments of the SANE exams.
Amend §9003(f) to clarify which motor vehicle offenses involving alcohol or drugs, injury, and leaving the scene of an accident would be covered under the statute.
The current enabling statute allows the Board to deny any claim, regardless of merit.
AG Opinion stating the Board may disregard drug possession if the amount seems like personal use and is not the cause of the murder.
Define the next of kin as victims in a murder. Even a gun carrying drug dealer may have law-abiding, hardworking next of kin. These next of kin are ineligible for funeral benefits.
Change the Board policy that the victim must submit 6 paystubs received prior to the victimization.
Simplify the process for awarding mental health claims. Establish this process through Rules and Regulations.
The Board's proposed regulation to only pay "mental health provider claims at 80% of charges" is inconsistent with its legislative mandate to pay "expenses actually and necessarily incurred", not an arbitrary percentage of actual expenses.
a. Mental health claims are paid at 80%. Mental health parity laws require equality between mental health and substance abuse coverage and all other coverage.
The proposed regulations impose a cap on adult mental health counseling which is not authorized in its enabling statutes.
Reconsider the requirement that victims are required to write personal letters to the VCCB relaying their specific traumatic events as part of the application process.
New regulations should clearly explain the requirements and dollar limits, if any, for the major benefits.
Once the regulations are promulgated, a user friendly victims service manual should be developed using a 6th grade reading standard like the Pennsylvania victims service manual.
The Board does not have the definitive policies/procedures in place to handle the volume of claims and/or emergency situations.
Revise the timelines for appeals, request for information and claims processing.
Reconsider the Board’s policy regarding combining all funeral claims. The former process was to consider benefits for cemetery costs and grave markers individually.
Review the policy regarding lost wages .. use examples from other states like Pennsylvania and South Carolina to make it a simpler application process. Most states have a provision for staff to award lost wages for less then two weeks based on police reports and employer questionnaires. For lost wages after two weeks a doctor’s report is also needed. Once it is clear that there is no other payer for the lost wages, the Compensation agency pays lost wages using the states worker comp rates, or 2/3 of the gross pay based on employer form or some use calculation which is more like 85% of gross pay. The staff also has the authority to request more payroll information if needed or to request W-2 if self employed.
Review the VCCB’s policy of granting only the security deposit and the difference between the amount of the new rent and that which was paid at the old address.
Provide 100% coverage for the emergency room examination for victims of sexual assault. Create a three tiered system for the short form. Tier one is the basic sexual assault forensic examination. Tier two would include the forensic examination, plus additional diagnostic testing. Tier three would include all of the above, plus hospitalization costs. The goal is to make the process user friendly and less convoluted for the victim.
The State Council for Persons with Disabilities (SCPD) has reviewed the Delaware Violent Crimes Compensation Board's proposal to adopt new regulations covering mental health and funeral/burial expenses published as 12 DE Reg. 1150 in the March 1, 2009 issue of the Register of Regulations. SCPD has the following observations.
First, the numbering of the new regulation is inconsistent with the numbering of final regulations adopted in the March issue of the Register of Regulations, 12 DE Reg. 1193. The latter regulations include a §26.0 which covers burial awards. The proposed regulation does not repeal the existing §26.0 but creates a new §26.0 covering mental health counseling.
Second, in §26.1.2, the word "affect" should be "effect".
Third, §26.1.1 imposes a cap on mental health counseling of $7,500. Moreover, §26.1.4 recites that the "Board pays mental health provider claims at 80% of charges." There is arguably some "tension" between these limitations and the enabling statutes.
A. Title 11 Del. C. §9002(7) defines "pecuniary loss" as "expenses actually and necessarily incurred", not 50%, 60% or 80% of the actual expenses. Moreover, to the extent that an "80%" limit is not applied to "physical health" claims, the regulation may violate the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.
B. The Board can establish a maximum cap on mental health expenses pursuant to Title 11 Del. C. §9020 for children. Apart from the general $25,000 and $50,000 caps in Title 11 Del. C 9007, there is no explicit authorization to impose a cap on mental health services for adults. Indeed, the absence of a cap in Title 11 Del. C. §9002(7) suggests that the Legislature envisioned no cap on mental health services other than the overall $25,000 and $50,000 caps. See also Title 11 Del. C. §9002(7)f which explicitly excludes "counseling" from a $1,000 cap on reasonable expenses for secondary victims.
Fourth, §26.2.1 is misnumbered as "23.2.1. It contains a definition of "victim". SCPD recommends deletion since §2.0 already contains a definition of "victim" applicable to the entire Part 301 regulation. Moreover, the definition in §23.2.1 is not co-terminus with the definition in §2.0. The former section defines a victim as someone injured or killed during the commission of any crime while §2.0 and Title II Del. C. §9002(10) limit a "victim" to someone injured or killed by a crime "as defined in this chapter".
Fifth, §26.2.2 contains a definition of "secondary victim". SCPD recommends deletion since §2.0 already contains a definition of "secondary victim" applicable to the entire Part 301 regulation and the definition in §26.2.2 is not co-terminus with the definition in §2.0. The former section includes a "latch-key child" which is omitted from the latter section and Title 11 Del. C. §9002(9).
Sixth, §26.2.3 contains a definition of "child". It should be deleted since §2.0 already contains a definition of "child" applicable to the entire Part 301 regulation. See also §26.4.1 which cross references the definition of "child" in §2.0.
Seventh, in §26.3.2, substitute "its" for "their" to correct use of a plural pronoun with a singular antecedent.
Eighth, in §26.6.4, second sentence, substitute "are" for "is".
Ninth, §26.4 is inconsistent with §25.1 of the regulations adopted at 12 DE Reg. 1193 (March 1, 2009) since the latter omits "Licensed Mental Health Counselor". The Board may wish to prospectively amend §25.1 to include a reference to "mental health counseling".
Tenth, §29.1 imposes an $8,500 cap on funeral and burial expenses. SCPD questions the Board's authority to impose such a cap. The enabling statute [Title 11 Del. C. §9002(7)] defines pecuniary loss as including "funeral and burial expenses" and, while caps are legislatively imposed on certain expenses, they are not imposed on" funeral and burial expenses." See Title 11 Del. C. §9002(7)a-I. The legislative intent is ostensibly to impose no arbitrary cap but only the general $25,000 cap [Title 11 Del. C. §9007(d)].
Eleventh, §29.1.4.1 is odd. It suggests that mental health counseling is considered part of funeral/burial expenses for secondary victims. However, mental health counseling is not included in the list of "permitted expenses" in §29.1.2. Moreover, the enabling statute ostensibly rejects imposition of a cap on counseling services for secondary victims where the primary victim has been killed. See Title 11 Del. C. §9002(7)f By including such expenses in §29, they would be subject to the $8,500 cap imposed by §29.1.1.
F. The Joint Sunset Committee shall:
Send a letter to the Governor asking him to not move forward with reappointing any VCCB members whose term expires or who resigns before the JSC process is completed.
Epilogue language of FY’08 Budget Bill included language which reallocated funds from the Violent Crimes Compensation Board to the Office of the Attorney General to fund family violence programs in Kent and Sussex Counties. Send a letter to the Chairs of the Joint Finance Committee, Russ Larsen and Mike Morton from the JSC requesting that the JFC add New Castle County to the epilogue language this year.
Section 51 of the FY 2009 Budget Act on page 112.
1 Section 51. (a) Notwithstanding any other provisions of the Delaware Code to the contrary,$655.0 shall be transferred from the Victims Compensation Fund for the following purposes: $230.2 ASF shall be transferred to Contractual Services in the Office of the Attorney General (15-01-01) to fund family violence services in Kent and Sussex counties; $273.8 ASF Victims Rights in the Office of the Attorney General; and $151.0 ASF Contractual Services in the Department of Correction, Community Corrections, Probation and Parole (38-06-02) to support a community restorative justice program in New Castle County.
(b) It is the intent of the General Assembly and the Administration that the funds identified in subsection (a) shall be established in the base budget appropriations within the respective departments in the Fiscal Year 2010 budget.
JSC Final Report
Executive Summary May 2010
The Joint Sunset Committee approves and submits the 2010 Final Report to the Governor and members of the 145th General Assembly.
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Rep. John A. Kowalko, Jr., Chair Sen. Bethany A. Hall-Long, Vice-Chair
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Rep. John C. Atkins Sen. Colin R. J. Bonini
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Rep. E. Bradford Bennett Sen. Joseph W. Booth
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Rep. Thomas H. Kovach Sen. Brian J. Bushweller
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Rep. Clifford G. Lee Sen. Michael S. Katz, M.D.
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