Joint Sunset Committee



Joint Sunset Committee

Tuesday, May 24, 2011, 1:30 p.m.

Cannon Building, Div. of Professional Regulation Conference Room B

JSC Meeting

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JSC and Staff: Sen. George H. Bunting, Jr., Chair; Rep. John A. Kowalko, Jr., Vice Chair; Sen. Michael S. Katz; Sen. Robert I. Marshall; Senator F. Gary Simpson; Rep. John C. Atkins; Rep. E. Bradford Bennett; Rep. Michael Ramone; Rep. Daniel B. Short; Debbie Puzzo, JSC Executive Director; Judi Abbott, Legislative Council staff; and Cathy Gregory, House staff.

Absent: Sen. Colin R.M.J. Bonini

In attendance: Jeff Hague, Registrar of Regulations, Legislative Council; Kelli Thompson, Nemours; Norma Everett, NHPS; Familda Shaw, Nemours; Jean Wollis, NHPS; Jim Greene, Gambling Control Board; Sonya Davis, NHPS; Pat Redmond, NHPS; Debbie Taylor, DAEYC; Chris Whitfield, DREC; Yvette Santiago, Nemours; Stefanie Val Staz, Nemours; Gina Celand, Nemours; Laura Miles, DSCYF/DFS; Connie Merlet, provider; Karen Field Rogers, DOE; Maureen Laffey, DOE/DHEO; Andrew Taylor, Cooch & Taylor, DAR; Bob Willard, DAG; Christy Valdensender, Rodel; Lisa Borin Ogden, VCAP; Deborah Messina, Gaming Control Board; Deborah Neff, NHPS; Charlotte Herbert, DAR; Julia Pearce, CPRB

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Agenda:

I. Welcome

II. Approval of Minutes dated May 3, 2011

III. Recommendations

a. Office of Child Care Licensing Proposed Recommendations (continued)

b. Real Estate Commission – Discussion/Vote additional recommendations

c. Gaming Control Board – Discussion/Vote additional recommendations

IV. Discussion/Vote on Sunset Review status of 2011 Entities

a. Child Placement Review Board

b. Delaware Real Estate Commission

c. Gaming Control Board

d. Office of Child Care Licensing

V. 2010 Progress Report Summary – Discussion/Vote on Sunset Review status

a. Delaware Higher Education Commission

b. Victims' Compensation Assistance Program

c. Board of Dental Examiners

d. Board of Massage and Bodywork

e. Newark Housing Authority

f. Delaware Health Information Network

VI. New Business

a. Legislation

(1) Victim's Compensation Assistance Program (VCAP)

(2) Div. of Professional Regulation

(3) Massage Bill

b. Discussion/ Vote regarding Entities for the 2012 JSC Review Schedule

VII. Adjournment

Sen. Bunting called the meeting to order at 1:36 p.m.

I. Welcome

Sen. Bunting welcomed everyone and thanked them for attending. The members introduced themselves.

II. Approval of Minutes dated May 3, 2011

Motion and second to adopt the May 3, 2011 minutes. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson)

III. Recommendations

a. Office of Child Care Licensing Proposed Recommendations (continued)

30. Continue to explore technology solutions that allow staff to better perform their duties as well as allow more paperwork to be directly input into the Family and Child Tracking System (FACTS) database while in the field.

Motion and second to adopt #30. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

31. Continue to inform parents, providers and the public of the prevalence of legally unlicensed programs and the possible risks they present to children, and the benefits of licensing.

Motion and second to adopt #31. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

32. Develop a realistic, integrated, adequately financed business model ensuring consistent quality care and education that supports children’s school readiness and allows providers and teachers to meet the high expectations they desire to meet.

Motion and second to adopt #32. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

33. Coordinate the efforts of DSCYF (OCCL), DOE, DHSS, funders and training organizations to ensure resources are available for things such as accessible training, financing, adequate workforce development – the building blocks that enable child care providers to meet regulations and achieve higher quality.

Motion and second to adopt #33. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

34. Provide regular communication to providers from the Interagency Resource Management Committee. This Committee provides communication and coordination among the three state agencies that hold jurisdiction for various aspects of early childhood programming – DSCYF (OCCL), DOE, DHSS. This information should be in an easy to read format and distributed to providers at least monthly.

Motion and second to adopt #34. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

35. OCCL should develop and implement written policy regarding compliance violations including enforcement processes and possible penalty parameters and guidelines. Included in this policy should be consideration of financial impact to provider viability and the severity and threat to children’s health and safety.

Motion and second to adopt #35. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

36. On April 14, 2011, the JSC voted to adopt the recommendation “Rename the provisions “regulations” rather than “rules” and “requirements” to be consistent with the Administrative Procedures Act.”

Since that time it has been brought to the JSC’s attention by the Registrar of Regulations that OCCL maintains its own numbering system for regulations. The Registrar has repeatedly delineated the risk in this practice. As such, the Delacare Rules for Early Care and Education and School Age Centers that appear on the OCCL website ARE NOT numbered consistent with the Administrative Code and are not the same as the official regulations that appear in the Administrative Code. This inconsistency is very confusing to the parents and providers.

Proposed Recommendation:

OCCL shall work with the Registrar of Regulations to provide the means for parents and providers to have access to authenticated versions of the OCCL's regulations.

Jeff Hague, the Registrar of Regulations for the State of Delaware, addressed the Committee relating to the numbering system of the OCCL's Regulations found on their website. These rules do not comply with the standard numbering system of the Administrative Code of Regulations.

Representative Kowalko read his written statement into the record.

In light of the attorney’s report on OCCL regulations and the parameters of constraint, legally and constitutionally I am making the following statement.

Let’s begin by reviewing the intentions of the JSC. We review agencies and make recommendations. If we find an agency goes beyond their legal statute, we help them stay within their purpose.

Let me preface so there is no question of agenda or motive. We, all the members of the JSC, care very deeply about the ability of our children to reach their full potential and to become successful. We understand that the first 5 years of a child’s life are tremendously important to their future development and we want them all ready for kindergarten.

The question before us is how we get them there, and whose responsibility it is to get them there. Is it the responsibility of the State, a state agency, the private institutions which provide care or the parents?

Most of the institutions which OCCL oversees provide care for children while their parents are at work. Those might include Family Care providers, Centers which are private, non-profit and for profit businesses. They may be Public such as Head Start or ECAP (Early Childhood Assistance Program), federally funded or they may be attached to one of the universities. Each of these various entities has different purposes and exists for different reasons although they certainly have some of the same goals.

OCCL has a monumental job to do in overseeing all of these disparate groups and we commend its work. We understand the importance of everything OCCL does and it is the committee’s responsibility to question whether everything OCCL does is completely within their purview, especially when it comes to private industry and parental rights.

It is certainly not within the purview of government to regulate businesses to such a degree as to harm those businesses, but more importantly, we must be very careful that the government or its agencies does not overrule the rights of parents to raise their children according to their beliefs and customs. Parents choose “care” for their children for many reasons—cost, convenience and philosophy among others.

OCCL’s mission statement is very broad, but the Supreme Court has been very clear concerning the privacy rights of parents and their constitutional rights of “child rearing”. These rights include the education of their children and the choice of educational methodology. It is the very reason we have private K-12 schooling choices. 0-5 “care” is no different. Parents have the right to choose educational care.

As in the limits to nutritional restrictions the JSC may advise the OCCL to take care with their restrictions and mandates on educational programming. When the JSC reviews an agency the review can be ongoing.

We have to allow alternative choices in child care because parents want them and are constitutionally allowed to demand them. We must be very cautious with imposing over burdensome regulations lest they restrict parental choices.

Motion and second to adopt #36. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

37. DOE uses and Alternate Routes to Certification process that provides:

“Under the Delaware ARTC program, individuals with college degrees in selected secondary school subjects may be hired by a public or charter secondary school and complete certification requirements during the first year of teaching -- through a 12- to 18-month, state-approved program of classes and seminars accompanied by intensive, school-based mentoring and supervision.”[1]

As such, a similar process should be offered for early care and education and school age centers.

Proposed Recommendation:

Establish a formal plan to include a process for appeal of provider staff education requirements with the goal of reasonable criteria substitution and a time frame for unexpected circumstances that currently leave centers out of compliance.

Motion and second to adopt #37. Yes – 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

38. The Child Care Act (31 Title § 344(b)(2)) does not provide that the OCCL can mandate a child’s nutrition. Statute provides:

“that the individual home or facility meets the physical, social, moral, mental and educational needs of the average child;”

• OCCL has the statutory authority to educate about and encourage healthy eating but statute does not give OCCL the authority to mandate that the child eat healthy foods.

• The Delacare Rules for Early Care and Education and School Age Centers regarding the substitution of food provided by a parent is outside the statutory authority of the OCCL.

Aaron Stewart, House Democrat Caucus attorney, was asked to research: (i) whether the Office of Child Care Licensing (“OCCL”) can mandate that a child care center that provides food and/or snacks be required by regulation to serve foods meeting certain nutritional requirements, and (ii) whether OCCL has the authority to mandate that a child care center replace a child’s food brought from home if the food fails to meet nutritional requirements. He states the following in his opinion:

Conclusion

The Delaware Child Care Act is broadly worded. If a court used the plain meaning of the words to interpret the language of the Act, it would likely find that OCCL has the authority to regulate nutritional requirements of food provided at child care centers. A court likely would reach a similar conclusion if it determined that the language of the Act was ambiguous and looked to the legislative intent of the Act.

The inquiry, however, does not end there. The Act still requires that any regulations implemented by OCCL be reasonable. Many factors weigh against the reasonableness of the regulations, including the broadness and vagueness of the regulations, the difficulty of enforcing the regulations, and the cost-prohibitive nature of the regulations. Furthermore, if a court were to determine that the regulations require a lunch brought from home that does not meet nutritional requirements to be replaced, certain constitutional issues could arise.

Accordingly, while OCCL may have the authority to regulate nutritional requirements in child care centers, many factors weigh against the reasonableness of the regulations that are now in place, particularly if those regulations require the replacement of a child’s lunch.

Proposed Recommendation:

Delete Delacare Rules for Early Care and Education and School Age Centers 339(F), 339(G) and 345(A).

Motion:

Delete Delacare Rules for Early Care and Education and School Age Centers 339(F), 339(G) and 345(A) and rewrite.

Amended Motion (referencing Regulations):

Amend the Delacare Rules for Early Care and Education and School Age Centers 339(F), 339(G) and 345(A) involving procedures so directed by the Executive Director.

Motion and second to adopt #38. Yes – 9 (Sen. Bunting, Rep. Kowalko, Rep. Atkins, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

29. OCCL should work more closely with providers to help them deal with parents regarding compliance with the nutritional regulations. OCCL should send out official notices that providers can use to tell parents about the regulations.

Motion and second to adopt #29. Yes – 9 (Sen. Bunting, Rep. Kowalko, Rep. Atkins, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

39. The Child Care Act (31 Title § 344(b)(2)) provides:

“that the individual home or facility meets the physical, social, moral, mental and educational needs of the average child;”

Proposed Recommendation:

a) Develop a policy that specifically identifies the average child.

b) Develop a policy that lists the requirements for defining and meeting the social, moral and mental needs of the average child.

Rep. Ramone suggested rewriting the language in the Code that the individual home or facility meets the needs of the individual child or each individual child, rather than using the phrase "social, moral and mental needs of the average child".

Sen. Katz commented that there are poorly written areas in the Code referencing language throughout, such as using the phrase "average child".

Motion:

Motion to review the Act in its entirety to see if there are opportunities to revise the language.

Motion and second to adopt #39. Yes – 9 (Sen. Bunting, Rep. Kowalko, Rep. Atkins, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

40. In the Draft Report, OCCL provided the following with regard to its mission:

The mission of the Office of Child Care Licensing is to provide safeguards and enhance the quality of care for children in out-of-home care. The enabling legislation accurately reflects the mission of the Office of Child Care Licensing but does not require all providers of child care to be licensed. As such, “Early Success: Delaware’s Early Childhood Plan”, includes Objective III.12: “Expand state program licensing statutes to cover all early care and education programs. Create, as part of the development of public will, a campaign to inform parents, providers and the public of the prevalence of legally unlicensed programs and the possible risks they present to children, and the benefits of licensing.” The void in standards for all child care does not promote the mission across all environments of out-of-home care.

The Child Care Act ONLY applies to private early care and education and school age centers BUT DOES NOT apply to early learning centers that are part of a parochial school or public school district. As such, legislative change appears to be the remedy for closing the exemptions contained in the current Delaware Code.

Proposed Recommendation:

Amend the statute by deleting 31 Del C. § 344 (d) in its entirety, removing the exemption for any institution, agency, association or organization under state ownership and control, and any maternity ward of a general hospital, thus providing safeguards and enhancing the quality of care for ALL children.

Motion to adopt #40 failed to have a second.

Motion and second to release the Office of Child Care Licensing from review with reporting requirements. . Yes – 9 (Sen. Bunting, Rep. Kowalko, Rep. Atkins, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

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b. Real Estate Commission – Discussion/Vote additional recommendations

As adopted:

8. Amend the statute to require that current licensees, when renewing their licenses, attest to the fact that they have not been convicted of a felony.

Proposed Change:

Amend language to be consistent with other Title 24 Boards and Commissions.

As amended:

“Amend the statute to require that current licensees, when renewing their licenses, disclose whether they have had any criminal convictions since the last license renewal.”

Motion and second to adopt #8 as amended. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

As adopted:

10. Amend the statute to include new language, terms and sections to coincide with modern practices and provide clarity for practitioners and the public. New or revised terms include: Associate Broker (new), Conviction (legal), Division (legal), Dual Agent (clarity), Person (legal, Property Management Services (clarity), Psychologically Impacted (clarity), Real Estate Services (new), Real Estate Provider (new), Rules and Regulations (clarity).

Proposed change:

a) In addition, for clarity and completeness, the Commission requests to add or amend the following definitions: Broker, Brokerage Organization, Customer, Designated Agent, and Salesperson.

As amended:

“Amend the statute to include new language, terms and sections to coincide with modern practices and provide clarity for practitioners and the public. New or revised terms include: Associate Broker (new), Broker (clarity),Brokerage Organization (clarity), Conviction (legal), Customer (clarity), Designated Agent (clarity), Division (legal), Dual Agent (clarity), Person (legal, Property Management Services (clarity), Psychologically Impacted (clarity), Salesperson (clarity), Real Estate Services (new), Real Estate Services Provider (new), Rules and Regulations (clarity).”

Motion and second to adopt #10a. as amended to include definitions for the ones that are in bold. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

b) In further connection with “Definitions,” the Commission requests that the following portion of Section 2971(a), in Subchapter IV, be moved to the end of the “Definitions” section, with the modification of the word “subchapter” to “chapter”. Relocating this provision to the “Definitions” section will clarify that the provision applies to the entire chapter.

(In applying this subchapter to leasing transactions, the word "landlord" may be substituted for "seller", the word "tenant" may be substituted for "buyer", and the word "lease" may be substituted for "agreement of sale" where applicable. The terms "rental agreement" and "lease" may be used interchangeably.)

Proposed Recommendation 10 (b)

Amend the statute by deleting the second sentence in 24 Del. C § 2971(a). (In applying this subchapter to leasing transactions, the word "landlord" may be substituted for "seller", the word "tenant" may be substituted for "buyer", and the word "lease" may be substituted for "agreement of sale" where applicable. The terms "rental agreement" and "lease" may be used interchangeably.)

Motion and second to adopt #10b. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

Proposed Recommendation 10 (c)

Amend the statute by inserting the following section at the end of the “Definitions” section of 24 Del. C Ch. 29.

“In applying this chapter to leasing transactions, the word "landlord" may be substituted for "seller", the word "tenant" may be substituted for "buyer", and the word "lease" may be substituted for "agreement of sale" where applicable. The terms "rental agreement" and "lease" may be used interchangeably.

Motion and second to adopt #10c. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

As adopted:

26. Amend the statute by deleting 24 Del. C § 2918, entitled “Form and display of certificate,” and incorporate the provisions into 24 Del. C. § 2906, which refers to the certificate requirement.

Proposed change:

This Recommendation directs deletion of Section 2918, “Form and display of certificate” and incorporation of Section 2906, which refers to the certificate requirement. The Commission requests that Section 2918 remain with minor revisions for clarity. The certificate, or license requirement will be a separate section, with exemptions to follow. Currently, exemptions are included as part of Section 2901 (Definitions and exceptions).

Proposed Recommendation as amended:

Vote to delete April 27, 2011 Final Recommendation #26.

Motion and second to delete #26 from the April 25, 2011 Final Recommendations. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson)

As adopted:

51. Amend the statute to provide that a licensee who fails to take all the required continuing education classes shall be fined $100 a month. The licensee shall have 6 months to become current.

Proposed change:

None of the other Title 24 boards has a comparable provision. A licensee cannot be sanctioned without a hearing. Continuing education matters are addressed in rule to show cause hearings. Each case is considered separately and the Commission determines the appropriate sanction on a case by case basis. The Commission requests that this Recommendation be removed.

Proposed Recommendation as amended:

Vote to delete April 27, 2011 Final Recommendation #51.

Motion and second to delete #51 from the April 27, 2011 Final Recommendations. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

Additional Proposed Real Estate Commission Recommendations:

(1 and 2 are combined)

1. As provided for in Recommendation # 10, the new statute would include a definition of “Property Management. Simply defining Property Management will cause more confusion than already exists. It should be explicit that Property Management is not governed under Title 24.

Proposed Recommendation:

Amend the statute to provide that this Chapter shall not apply to:

“ A provider of Property Management Services as defined in Section 2902 of this Chapter excepting that a provider of Property Management Services shall not directly or indirectly sell or offer to sell, buy or offer to buy, negotiate the purchase, sale or exchange of real estate, lease or rent or offer for lease or rent any real estate, or negotiate leases or rental agreements thereof or of the improvements thereon for others.”

2. Amendment to Owner Exemption

This is based upon the 2001 JSC recommendations to clarify the Owner and employee Exemption. In the advent of Limited Liability Companies and corporate structure this will help to clarify levels of ownership.

Proposed Recommendation:

Amend the statute to provide that:

(b) This chapter shall not apply to:

(1) Any Person or a subsidiary or division thereof who, as owner or lessor or buyer or lessee, performs any of the acts enumerated in this section with reference to property owned, purchased or leased by such Person or a subsidiary or division thereof or to the regular employee of such Person, with respect to the property so owned, purchased or leased, where such acts are performed in the regular course of or as an incident to the management of such property and the investment therein; or

Motion and second to adopt #1 and #2. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

Miscellaneous

1. Amend 29 Del. C § 2901(a)(1) by deleting the following definitions, which are either inapplicable or no longer needed: “Appraisal assignment,” “Broker owner,” and “Consumer.”

Motion and second to adopt #1. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

2. Amend the statute by deleting 29 Del. C § 2902(d) in its entirety.

This section was applicable when the specific Commission composition requirements were enacted.

Motion and second to adopt #2. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

3. Amend 29 Del. C § 2903(c) by deleting the phrase “no certificate issued under this chapter shall be suspended or revoked nor any civil penalty imposed” and insert therein “no license shall be disciplined”. This is broader language consistent with other Title 24 boards.

Motion and second to adopt #3. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

4. Amend the statute by deleting 29 Del. C § 2912(a)(10) in its entirety.

This provision is not needed because other provisions give the Commission authority to sanction for fraudulent conduct. For example, Section 2912(a)(12).

Motion and second to adopt #4. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

5. Amend the statute by deleting 29 Del. C § 2925 in its entirety. This provision has no relevance to the operation of the Commission.

Motion and second to adopt #5. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

Motion and second to release the Real Estate Commission from review with reporting requirements. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

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c. Gaming Control Board – Discussion/Vote additional recommendations

The JSC voted to adopt that the following Final Recommendations from April 7, 2011 be included in a bill for introduction in June 2011. All other Final Recommendations from April 7, 2011 will be included in the rewriting of the 3 chapter (into one chapter) and shall be introduced in bill format in January 2012.

1. Change name to Board of Charitable Gaming;

2. License third party vendors;

3. Have the Lottery Director or designee serve on the Board;

4. Require public hearings before adopting new regulations;

5. Have the State Lottery Office provide funds for certain investigators;

6. Include a new definition of “Charitable gaming”, and

7. Allow a Board member whose term expires to continue participating until replaced.

Motion and second to adopt 7 Final Recommendations from April 7, 2011 to be included in 2011 legislation. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

Ms. Puzzo stated that the Board’s DAG raised two issues discovered while combining the three governing chapters into one governing chapter.

1) Raffles have not been defined in the current statue and the governing statute does not specifically authorize the Board to oversee raffles.

2) The statute needs clarification regarding alcohol beverages.

The JSC stated that these issues will be discussed in the 2012.

Motion to hold over the review of the Gaming Control Board into 2012. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

IV. Discussion/Vote on Sunset Review status of 2011 Entities

a. Child Placement Review Board

Ms. Puzzo referred to Recommendation #1 from the May 3, 2011 Final Recommendations.

1. Establish a task force comprised of various parties

involved in the Child Placement Review process with the mutual goal of:

a. Identifying mechanisms to improve coordination between the Child Placement Review Board reviews and those conducted by Family Court to create a more integrated review process.

b. Examining ways to empower and help the Child Placement Review Board become more effective.

c. Examining ways to make the child placement review process in Family Court more efficient and less redundant.

Ms. Puzzo stated that the Recommendation was unclear as to who had the authority to create the recommended task force. No action taken by the JSC.

The following 2 Recommendations were adopted at the May 3rd meeting:

4. Amend the statute to more accurately reflect the Board’s duties and powers by deleting 31 Del. C. §3805 (5) (Powers and Duties of the Board) in its entirety.

5. Amend 31 Del. C. §3805(5) (Powers and Duties of the Board) by deleting the words “Executive Committee’s” to more accurately reflect the duties of the Board.

Recommendation #4 deletes 31 Del. C. §3805 (5) so Recommendation #5 is not necessary.

Motion and second to delete Recommendation #5 from the May 3, 2011 Final Recommendations. Yes – 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

8. Amend 31 Del C. §3809 (7) (Duties of the Executive Director) to more accurately reflect the duties of the Executive Director by adding “achieving permanency for the child and” after the words “goal of" and before the word "assuring".

The Board requests inserting the word “promoting” in place of the word “assuring”.

Motion and second to delete the word "assuring" and replace it with the word "promoting". Yes 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

Motion and second to release the Child Placement Review Board from review with reporting requirements. Yes 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

V. 2010 Progress Report Summary – Discussion/Vote on Sunset Review status

a. Delaware Higher Education Commission

Ms. Puzzo stated that the Higher Education Office did not comply with the 2010 JSC Recommendation B6. Below is an excerpt from the 2011 Progress Report:

B6. 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.

September Response: Due to additional responsibilities given to staff, and not being approved to fill a vacant staff position, we have not been able to perform a comprehensive evaluation of our scholarship programs. As staff time allows, we will begin to collect and analyze our internal data on our scholarship program recipients, and well as do an extensive amount of research on similar programs in other states.

When asked by the JSC why the Higher Education Office did not comply with the Recommendation, Maureen Laffey, Director of the Higher Education Office, stated that the Office has been doing work with regard to Race to the Top.

Rep. Kowalko stated that he was Chair of the JSC last year and the JSC was very specific that when the Higher Education Commission was renamed and moved to DOE, the Office was not to become an extension of DOE.

No one from DOE was present at the meeting during this discussion. As such, the JSC stated that they will hold a meeting at which time DOE can explain to the JSC its use of the Higher Education Office.

Motion and second to hold over the review of the Delaware Higher Education Commission with reporting requirements as well as discussions involving the Department of Education. Yes 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

b. Victims' Compensation Assistance Program

Motion and second to release the Victims' Compensation Assistance Program without reporting requirements. Yes 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

c. Board of Dental Examiners

Motion and second to hold over the review of the Board of Dentistry and Dental Hygiene (Board of Dental Examiners) with reporting requirements. Yes 5 (Rep. Kowalko, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson); No 3 (Sen. Bunting, Rep. Bennett, Sen. Katz) Motion adopted.

d. Board of Massage and Bodywork

Motion and second to hold over the review of the Board of Massage and Bodywork with reporting requirements. Yes 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

e. Newark Housing Authority

Motion and second to release the Newark Housing Authority without reporting requirements. Yes 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

f. Delaware Health Information Network

Motion and second to hold over the review of the Delaware Health Information Network with reporting requirements. Yes 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

VI. New Business

a. Legislation

(1) Victims' Compensation Assistance Program (VCAP)

All JSC members present agreed to sponsor the bill. Ms. Puzzo stated that Sen. Sokola agreed to be prime sponsor in the Senate as he was the JSC chair during the VCAP sunset review.

(2) Division of Professional Regulation

Synopsis of the bill: This bill authorizes any board, commission, committee or council listed in Section 8735(a) of Title 29 to delegate to the Director of the Division of Professional Regulation, or a designee, the administrative authority to issue permits and licenses to individuals and organizations in accordance with written criteria agreed upon by any such body and the Director. The bill will render the issuance of permits and licenses more efficient, will retain control over licensed professions and activities in the entities authorized to regulate them, and is consistent with authority granted previously to the Director with regard to bingo and charitable gambling events. 28 Del. C. Sec. 1130(b).

All JSC members present agreed to sponsor the bill.

(3) Massage Bill

Ms. Puzzo stated that in July of 2010, the Governor vetoed HB 463 relating to Massage and Bodywork.

Synopsis. This bill is a result of recommendations made by the Joint Sunset Committee. This bill phases out the two tier licensure structure in Delaware. Currently, the Board of Massage and Bodywork issues licenses to massage and bodywork therapists and certificates to massage technicians. Licensed therapists are required to complete at least 500 hours of education and pass a certification examination. Massage technicians are required to complete 300 hours of education and are not required to take an examination. Delaware is the only state to have this two tier system. The intent of this bill is to ultimately eliminate the massage technician category and require all practitioners to become licensed therapists. The higher educational requirements and the examination requirement will serve to improve practitioner training and competence and thus will benefit the recipients of massage services. Upon enactment, the Board will no longer accept applications for or issue massage technician certificates. However, technicians who maintain current, active certificates will have a three year window of opportunity to upgrade to licensure as therapists. To achieve licensure, massage technicians will be required to successfully complete an examination. No further education will be required.

Pursuant to this bill, three years after enactment, the Board composition will be modified to reflect the elimination of the massage technician category. The Board will consist of four licensed massage and bodywork therapists and three public members.

This bill expands the powers of the Board to include adoption of rules pertaining to advertising and unprofessional conduct by licensees and the adoption of a Client Disclosure Form, to be used by certified massage technicians. The form will require technicians to disclose to the public that they are not licensed therapists.

This bill also amends the requirements for licensure to enable the Board to take into account the applicant's professional disciplinary and criminal history. Further, all applicants will be required to undergo a criminal background check.

This bill expands the grounds for discipline to include unprofessional conduct, which shall be specified further in the Board's rules and regulations. Further, where a licensee is found guilty of a violation of the Board's law or rules, this bill gives the Board the discretion to impose a monetary penalty not to exceed $500 for each violation.

Finally, this bill clarifies and corrects certain statutory language.

The Governor’s veto message stated that he did not want to eliminate the massage tech tier. Discussion has been ongoing between the Division of Professional Regulation and the JSC Executive Director regarding a compromise bill perhaps requiring massage technicians to take an exam. Currently massage technicians are the only regulated profession that is not mandated to take an exam.

Motion and second to introduce HB 463 from the 145th GA, with minor housekeeping changes. Yes 7 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Rep. Ramone, Rep. Short, Sen. Simpson) Not voting 1 (Sen. Marshall) Motion adopted.

b. Discussion/Vote regarding Entities for the 2012 JSC Review Schedule

Motion and second to review the following entities listed below in 2012. Yes 8 (Sen. Bunting, Rep. Kowalko, Rep. Bennett, Sen. Katz, Sen. Marshall, Rep. Ramone, Rep. Short, Sen. Simpson) Motion adopted.

Continuing Entity Reviews from 2011 into 2012:

Board of Dentistry and Dental Hygiene (Board of Dental Examiners)

Board of Massage and Bodywork

Delaware Health Information Network

Higher Education Office (Higher Education Commission)

Gaming Control Board

Entities to be reviewed in 2012:

Delaware Early Care and Education Office (DOE)

Delaware Health Care Commission

Delaware Health Resources Board

Delaware Manufactured Home Relocation Authority, Title 25 §7011

Unemployment Insurance Appeal Board

VII. Adjournment

The meeting was adjourned at 5:30 p.m.

June 2, 2011/dap

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