TITLE 29

State Government

Public Officers and Employees

CHAPTER 52A. DISABILITY INSURANCE PROGRAM


(a) "Carrier" shall mean the disability insurance company selected pursuant to § 5254 of this title.

(b) "Committee" shall mean the State Employee Benefits Committee as established by § 9602 of this title.

(c) "Creditable compensation" shall mean the base rate of compensation that the employee received on the last day of employment before the employee developed a disability as determined by the Committee.

(d) "Disability benefit" shall mean income replacement payments payable to a participating employee under a short-term or long-term disability benefit program pursuant to this chapter.

(e) "Employee" shall mean an eligible "employee" as defined in § 5501(e) of this title who elects to participates in the Program as specified in § 5519 of this title. This shall include any employee who is collecting benefits pursuant to § 8352(4) of Title 11.

(f) "Employment" shall mean any occupation for which the employee is reasonably suited by training or experience.

(g) "Program" means the Disability Insurance Program created pursuant to this chapter providing short-term and long-term disability benefits for eligible employees electing to participate in the Program.

75 Del. Laws, c. 191, § 1; 76 Del. Laws, c. 321, § 1; 78 Del. Laws, c. 179, § 276.;

The State shall pay all premium or subscription charges for the full cost of providing coverage for the Disability Insurance Program.

75 Del. Laws, c. 191, § 1.;

(a) Participating employees shall be eligible to utilize earned sick leave for absences due to accident, illness, or injury for periods before disability benefits commence under this chapter, such that the participating employee receives 100% of creditable compensation for such periods, not to exceed the employee's sick leave balance.

(b) Short-term disability benefit.

(1) An employee who is determined by the Committee, in its sole discretion, to be mentally or physically unable to perform the essential functions of the employee's position as defined in rules and regulations adopted by the Committee, with reasonable accommodation as required by federal law, shall be entitled to receive short-term or long-term benefits pursuant to this chapter. An employee who receives short-term or long-term disability benefits pursuant to this chapter may be required, in the sole discretion of the Committee, to participate in rehabilitation or retraining services, or a combination thereof, under a program established by the Committee. Short-term disability benefits for participating employees shall commence upon the expiration of a 30-calendar-day elimination period. Such elimination period shall begin on the first day following the onset of physical or mental incapacity as determined by the Committee, in its sole discretion. If an employee returns to work for 1 day or less during the 30-calendar-day elimination period but cannot continue to work thereafter, the period worked shall not be considered to have interrupted the 30-calendar-day elimination period. The elimination period must commence and conclude within normal working periods for employees who work less than 12 months per calendar year.

(2) Except as provided in paragraph (b)(4) of this section, short-term disability benefits pursuant to this chapter shall be payable at the rate of 75% of the participating employee's creditable compensation prior to the onset of the disability during the period that an employee has a disability, as determined by the Committee.

(3) Creditable compensation during periods an employee receives short-term disability benefits shall include general salary increases awarded or reductions in salary instituted during the period of short-term disability coverage.

(4) An employee may utilize annual, sick, compensatory, or donated leave to supplement short-term disability benefits to equal 100% of pre-disability creditable compensation for the maximum period of 182-calendar-days.

(5) If a participating employee returns to the employee's position on a full-time basis, as defined by the Committee, for 15 consecutive calendar days or longer, any succeeding period of disability for which the employee shall become eligible shall constitute a new period of short-term disability with a corresponding 30-calendar-day elimination period.

(6) Employees enrolled in and receiving short-term disability (STD) compensation shall receive a maximum of 100% of base pay. If the employee is otherwise eligible for holiday pay or a paid leave other than identified in paragraph (b)(4) of this section, 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.

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

(8) When an employee is on approved STD per subsection (b) of this section and does not supplement the 75% STD payment with 25% leave for a period of greater than 30 calendar-days, the employee will accrue leave on a pro-rata basis.

(c) Long-term disability benefit.

(1) Long-term disability benefits for participating employees shall commence upon the expiration of a 182-calendar-day waiting period. The waiting period shall commence on the first day following the onset of the disability as determined by the Committee, in its sole discretion. If an employee returns to work for 14 or fewer consecutive calendar days during such 182-calendar-day waiting period and cannot thereafter continue to work, the periods worked shall not be deemed to have interrupted the 182-calendar-day waiting period.

(2) Long-term disability benefits for an eligible employee shall be paid in an amount equal to 60% of the participating employee's creditable compensation prior to the onset of the disability. In no event shall the employee be entitled to utilize earned sick leave to supplement long-term disability benefits.

(3) Long-term disability benefits shall not include general salary increases during the period of long-term disability. Long-term disability benefits may be increased annually by an amount approved by the Committee.

(4) Any employee who applies for long-term benefits pursuant to this chapter must apply to the Social Security Administration for disability benefits. Long-term disability benefits provided under this chapter shall be reduced by any disability benefits received from the Social Security Administration.

(5) Upon the exhaustion of the maximum short-term disability benefit period, any employee, except those entitled to hazardous duty pay as defined in § 5933(c) of this title, shall no longer be an employee of the State or any of its political subdivisions provided the employee has exhausted their Family Medical Leave Act of 1993 (FMLA) [26 U.S.C. § 2601 et seq.] entitlement and/or is not FMLA eligible. Employees entitled to hazardous duty pay as defined in § 5933(c) of this title who exhaust the maximum short-term disability benefit period shall no longer be an employee of the State or any of its political subdivisions at the end of their entitlement to hazardous duty pay provided the employee has exhausted their FMLA entitlement and/or is not FMLA eligible.

(6) Prior to the commencement of long-term disability benefits, the employee shall be eligible to make a written election to escrow for a period of 6 months any unused annual and sick leave based on the rules in place by the employing organization. Any employee who does not make a written election to escrow unused annual and sick leave will receive a payoff of unused annual and sick leave under § 5253(c)(5) of this title. Any employee approved for long-term disability benefits and who made a written election to escrow unused annual and sick leave who returns to state employment in a full-time benefit eligible position within the 6-month escrow period and works on a full-time basis for at least 30 calendar days will retain their annual and sick leave balances. Any employee making a written election to escrow unused annual and sick leave who does not return to state employment in a full-time benefit eligible position for at least 30 calendar days within the 6-month escrow period will receive a payoff of unused annual and sick leave at the end of the 6-month escrow period based on the rules in place by the employing organization.

(d) Eligibility for participation in the program shall terminate upon the earliest to occur of an employee's:

(1) Ability to return to employment;

(2) Death; or

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

(4) Normal service retirement at age 65.

If the employee develops a disability after age 60, the maximum duration of benefits will be subject to the following:

Age when disability developed or occurred Benefit duration
61 48
62 42
63 36
64 30
65 24
66 21
67 18
68 15
69+ 12

75 Del. Laws, c. 191, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 227, §§ 5, 7, 9; 75 Del. Laws, c. 351, §§ 2-5, 7, 8; 76 Del. Laws, c. 81, § 33; 76 Del. Laws, c. 324, §§ 1, 4; 77 Del. Laws, c. 84, §§ 57-59; 77 Del. Laws, c. 327, § 99; 77 Del. Laws, c. 328, § 30; 78 Del. Laws, c. 179, §§ 277-279.;

Disability insurance coverage pursuant to this chapter may be provided and/or administered by an insurance carrier licensed under the laws of this State. The carrier shall be selected by a vote of the Committee, and legally authorized to transact business within this State, and having adequate servicing facilities to carry out the terms of the contract as awarded by Committee.

75 Del. Laws, c. 191, § 1.;

The carrier selected pursuant to § 5254 of this title may determine the eligibility of a participating employee to receive short-term and/or long-term disability benefits. Such carrier shall also provide short-term and long-term disability benefits to eligible employees, and shall administer both the short and long-term disability programs established pursuant to this chapter. The Committee may adopt rules and regulations regarding proper administration of the disability program. Such rules shall include, but not be limited to, standards relating to the determination of disability; appeal procedures, requirements for medical or psychological examinations; the adjustment or termination of payments based on the mental or physical condition of the employee, and/or education, training, and experience of the employee. The disability program administrator's performance shall be evaluated on an annual basis by the Committee.

75 Del. Laws, c. 191, § 1.;

The State Employee Benefits Committee established by § 9602 of this title shall have the following powers, duties and functions under this chapter:

(1) Control and management of the State Employees' Disability Insurance Program as provided by this chapter.

(2) Authority to establish the state employees' short-term disability insurance program on a self-insured basis and a long-term disability insurance program on an insured basis.

(3) Selection, in its sole discretion, of the carriers or third party administrators deemed to offer the programs which will best satisfy the interests of the State and its employees in carrying out the intent of this chapter.

(4) Authority to adopt rules and regulations for the general administration of the Disability Insurance Program established pursuant to this chapter.

(5) Authority to make and enter into any and all contracts with any agency of the State, or any outside agency, for the purpose of assisting in the general administration of this chapter.

(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.

75 Del. Laws, c. 191, § 1; 75 Del. Laws, c. 351, § 9.;

(a) Once an employee has been determined to have the ability to return to employment by the Committee, the employee will receive the following assistance:

(1) Merit employees may be placed in any vacant merit position, for which they qualify, by the Office of Management and Budget.

(2) Nonmerit state employees, and employees from nonstate employers will be placed by that employer into a vacant position within their respective agency for which the employee qualifies.

(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 and 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.

75 Del. Laws, c. 227, § 1; 75 Del. Laws, c. 351, § 10.;

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 90 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 Appeals 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 Appeals Administrator or designee, shall issue a final written decision and shall mail it to the employee by certified mail, return receipt requested, within 30 days of speaking with the employee. The Committee shall designate an officer of the Statewide Benefits Office to act as the Appeals Administrator.

If the Appeals Administrator affirms the carrier's decision to deny disability benefits or any part thereof, an aggrieved employee may appeal to the Committee within 20 days of the postmark date of the notice of the determination from the Appeals Administrator by filing a written petition with the Committee setting forth with particularity the grounds for appeal. The Committee may designate an appropriate officer 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:

(1) 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;

(2) 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;

(3) 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 60 days of the hearing, and shall transmit the report, with the full record of the hearing, to the Committee.

(4) 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 60 days.

(5) 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 60 days of the hearing, and shall notify the parties of its action by certified mail, return receipt requested.

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

75 Del. Laws, c. 227, § 11; 75 Del. Laws, c. 351, § 6; 76 Del. Laws, c. 324, § 2; 77 Del. Laws, c. 84, § 60.;