CHAPTER 351

FORMERLY

SENATE BILL NO. 395

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE REGARDING EMPLOYEE DISABILITY BENEFITS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend §5519, Title 29, of the Delaware Code by adding thereto a new subsection (d) as follows:

“(d) An employee who elected disability pension coverage pursuant to §5519(b) of this Title, may elect to either:

continue coverage under the disability pension provisions under §5524 of this title; or elect to be covered under the Disability Insurance Program under Chapter 52A of this title. This election must be made in a form approved by the Committee, filed prior to December 15, 2006, to be effective January 1, 2007 and shall be irrevocable; however, if the date of disability is prior to January 1, 2007 coverage in the Disability Insurance Program will commence on the first day the employee returns to work after January 1, 2007. The employee will be required to submit Evidence of Insurability satisfactory to the carrier. All members of the Delaware National Guard or members of the U.S. Armed Forces Reserves who have been called to active duty must make their election within 45 days of the date they are no longer on active duty.”

Section 2. Amend §5253(b), Title 29, of the Delaware Code by adding thereto a new paragraph (6) as follows:

“(6) Employees enrolled in and receiving short-term disability (STD) compensation shall receive a maximum of 100 percent of base pay. If the employee is otherwise eligible for holiday pay or a paid leave other than identified in §5253 (b) (4) of this title, the employee will be granted 100% pay on the day in question without a residual. All leave supplements will be calculated on a pay period basis.”

Section 3. Amend §5253(b), Title 29, of the Delaware Code by adding thereto a new paragraph (7) as follows:

“(7) Once an employee exhausts their elimination period, the employee will be deemed to have applied for benefits under §5253 and shall not be eligible to utilize paid leave in lieu of application for short-term disability.”

Section 4. Amend §5253(b), Title 29, of the Delaware Code by adding thereto a new paragraph (8) as follows:

“(8) When an employee is on approved short term disability (STD) per Section 5253 (b) and does not supplement the 75 percent short-term disability (STD) payment with 25 percent leave for a period of greater than 30 calendar-days, the employee will accrue leave on a pro-rata basis.”

Section 5. Amend §5253(c)(5), Title 29, of the Delaware Code by deleting paragraph (5) in its entirety and substituting the following in lieu thereof:

“(5) Upon the exhaustion of the maximum short-term disability benefit period, the employee shall no longer be an employee of the State or any of its political subdivisions. Once long-term disability benefits commence the employee shall be eligible to receive a payoff of unused sick leave based on the rules in place by their employer.”

Section 6. Amend §5258, Title 29, of the Delaware Code by deleting said section in its entirety and substituting the following in lieu thereof:

Ҥ5258 Appeals.

The carrier shall notify a participating employee of its determination of the employee's eligibility for short-term disability benefits in writing by certified mail, return receipt requested, within 10 days of the carrier's determination. Within 180 days of the postmark date of the carrier's written notice of its determination, an aggrieved participating employee may appeal any denial of disability benefits by filing a written petition setting forth with particularity the grounds for appeal with the carrier. The carrier shall have the authority to reverse all or any part of its initial decision to deny benefits and shall notify the employee, the employing organization and the Statewide Benefits Office in writing by certified mail, return receipt requested within 10 days of the carrier's determination.

Within 20 days of the postmark date of the carrier's determination of appeal an aggrieved participating employee may file a second level appeal of denial of disability benefits by filing a written petition setting forth with particularity the grounds for second appeal, with the Statewide Benefits Human Resources Administrator of the Office of Management and Budget ("Administrator"), who shall conduct an informal review, and who shall have the authority to reverse all or any part of the decision of the carrier to deny benefits. The Statewide Benefits Human Resources Administrator or designee, shall issue a final written decision and shall mail it to the employee by certified mail, return receipt requested, within thirty (30) days of speaking with the employee.

If the Statewide Benefits Human Resources Administrator affirms the carrier's decision to deny disability benefits or any part thereof, an aggrieved employee may appeal to the Committee within twenty (20) days of the postmark date of the notice of the determination from the Statewide Benefits Human Resources Administrator by filing a written petition with the State Employee Benefits Committee ("Committee") setting forth with particularity the grounds for appeal. The Committee may designate the Benefits and Insurance Administrator of the Office of Management and Budget as a hearing officer to hear evidence presented by the participating employee or, in its sole discretion, it may decide to hear the appeal directly. The Committee or hearing officer, as the case may be, shall determine whether the determination to deny benefits complies with the applicable disability plan adopted by the Committee. The hearing officer and/or Committee shall have all of the following powers in respect to the conduct at the hearing:

(a) To issue subpoenas and administer oaths in any preceding. Any subpoena process or order or any notice or paper requiring service shall be sent by certified mail, return receipt requested;

(b) To examine persons as witnesses, take evidence, require the production of documents, and do all other things pursuant to law which are necessary to determine the appeal. In proceedings before the Committee or its hearing officer, if any person neglects to produce any pertinent document, neglects or refuses to appear after having been subpoenaed, refuses to testify or be examined, disobeys or resists any lawful order or process, or intentionally obstructs the hearing, the Committee shall certify facts under the signature of its chairperson or the hearing officer to any Judge of the Superior Court, which Judge shall there upon hear evidence as to the acts complained of. The Judge shall, if the Judge deems the evidence so warrants, issue an order requiring such persons to testify or produce documents or otherwise comply with the requirements of the Committee, as the case may require. Refusal to comply with the order of the Court shall constitute contempt of Court;

(c) Where the Committee assigns the matter to the hearing officer, the hearing officer shall decide the matter and prepare a report containing the findings of fact, and conclusions of law, within sixty (60) days of the hearing, and shall transmit the report, with the full record of the hearing, to the Committee.

(d) The Committee may accept or modify the hearing officer's final report, and shall notify the parties of its action by certified mail, return receipt requested within sixty (60) days.

( e ) If the Committee elects to hear the matter directly and not to assign it to the hearing officer, it shall issue its final decision containing findings of fact and conclusions of law, within sixty (60) days of the hearing, and shall notify the parties of its action by certified mail, return receipt requested.

(f) The Committee's final action may be appealed to the Superior Court within thirty (30) days after it is mailed to the parties by the Committee. The appeal shall be on the record.”

Section 7. Amend §5253(b)(1), Title 29, of the Delaware Code by adding a sentence to the end of said paragraph to read as follows:

“The elimination period must commence and conclude within normal working periods for employees who work less than 12 months per calendar year.”

Section 8. Amend §5253(d)(3), Title 29, of the Delaware Code by redesignating said paragraph as new paragraph (4) and by adding a new paragraph designated as paragraph (3) to read as follows:

“(3) ┬áthe date the employee is no longer covered by the Delaware State Employees' Pension Plan pursuant to Chapter 55 of this title; or”

Section 9. Amend §5256, Title 29, of the Delaware Code by adding thereto a new subsection (6) as follows:

“(6) The Committee may require any employee to furnish such information as may be required for the determination of benefits under this chapter, or to authorize the Committee to procure such information. The Committee may withhold payment of any benefit under this chapter whenever the determination of such benefit is dependent upon such information and the employee does not cooperate in the furnishing or procuring thereof.”

Section 10. Amend §5257, Title 29, of the Delaware Code by designating the current text of section 5257 as subsection (a) and adding a new subsection (b) to read as follows:

“(b) Once an individual has been determined to have the ability to return to employment by the committee, the individual will receive the following assistance:

(1) Former merit employees enrolled in and previously deemed eligible for the Long-Term Disability Program may, when available and appropriate, be placed by the Office of Management & Budget in any merit position, for which they qualify without a certification list, as long as the paygrade does not exceed their paygrade at the time of their acceptance into and eligibility for the Short-Term Disability Program. Exceptions to the paygrade limitation may be made for vacancies for which a documented shortage of qualified applicants exists.

(2) Former nonmerit employees enrolled in and previously deemed eligible for the Long-Term Disability Program will be placed by their previous employer into a vacant position within their respective agency for which they qualify.”

Approved July 01,2006