As used in this subchapter:

(1) “Behavioral health crisis intervention services surcharge” or “surcharge” means the amount imposed by a provider or collected by a prepaid wireless seller under this subchapter.

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

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

(4) “Fund” means the Behavioral Health Crisis Intervention Services Fund created by § 10212A of this title.

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

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

(7) “Provider” means a telecommunications service provider, including a wireless provider, any other provider that is required to or opts to provide 988 service, or any intermediate entity or pass-through agent providing telecommunications services.

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

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

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

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

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

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

c. A school district or charter school.

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

(13) “Wireless provider” means as “wireless provider” is defined in § 10002 of this title.

(14) “Wireless service” means as “wireless service” is defined in § 10002 of this title.

84 Del. Laws, c. 168, § 1; 

(a) The Fund is to be funded by means of a monthly behavioral health crisis intervention services surcharge of 60 cents per month imposed by providers on subscribers of telecommunications services in this State as follows:

(1) Residential telephone service. —

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

(2) Business telephone service. —

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

(3) Wireless service. —

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

(4) Nontraditional communication services. —

The surcharge must be imposed by each provider of nontraditional communications service on subscribers of such services where the provider is required to or opts to provide 988 service.

(b) The surcharge amounts collected under this section must be deposited into the Fund as provided under § 10212A(b) of this title.

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

(d) Each provider imposing the surcharge shall state the surcharge as a clearly identifiable, separate item on all subscriber invoices rendered after January 1, 2024.

(e) The surcharge under this section does not apply to wholesale services or to the State government.

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

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

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

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

84 Del. Laws, c. 168, § 1; 

(a) A behavioral health crisis intervention services surcharge must be assessed on each retail transaction. The rate of the surcharge is 60 cents per retail transaction.

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

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

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

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

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

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

(5) The consumer’s mobile telephone number is associated with a Delaware location.

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

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

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

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

(h) The surcharge collected by sellers must be remitted to the Division of Revenue quarterly on forms issued by the Director of the Division of Revenue and subject to such regulations and requirements as shall be prescribed by the Director of the Division of Revenue.

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

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

(k) The surcharge under this section does not apply to the State government.

84 Del. Laws, c. 168, § 1; 

(a) The Department of Finance may adopt regulations or policies and procedures to administer, enforce, and implement this subchapter.

(b) A provider or seller shall remit the behavioral health crisis intervention services surcharge on forms authorized by the Director of the Division of Revenue.

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

(d) To the extent practicable, the audit, appeal, and other administrative provisions of Chapters 3 and 5 of Title 30 apply to the administration of the behavioral health crisis intervention services surcharge.

84 Del. Laws, c. 168, § 1;