Delaware Bills

This Act updates the membership of the Telecommunications Relay Service Advisory Committee to include the groups currently engaged in ensuring telecommunications relay services are provided to Delawareans who need relay services. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual and to the name of the Division for the Visually Impaired.

This Act would prohibit insurers and pharmacy benefit managers from engaging in the practice of "clawbacks". When the total cost of a prescription drug to an insurer or pharmacy benefits manager is less than a patient's co-pay, the insurer or pharmacy benefits manager keeps the difference in a practice known as a "clawback". According to a March 2018 report issued by the University of Southern California's Schaeffer Center for Health Policy & Economics based on the Center’s analysis of 2013 data from a large commercial insurer combined with data on national average drug reimbursements, almost 25% of filled pharmacy prescriptions involved a patient co-payment that exceeded the average reimbursement paid by the insurer by more than $2.00. The report further noted that overpayments were more likely to occur on claims for generic drugs than brand drugs and that the total overpayments in the Center’s sample amounted to $135 million.

This bill reflects in greater detail the work performed by DSAMH and ensures that DSAMH has the appropriate authority to license and oversee community mental health providers as they do with SUD facilities. DSAMH essentially already does this when they draft their contracts, so providers are already required to meet their specific standards. This bill establishes uniform standards for providers.

Section 1 of the Act addresses statutes under Chapter 33 of Title 12 and (i) clarifies the definition of governing instrument in section 3301(e) to include cross-references to new section 3343; (ii) adds a definition of “published fee schedule” to section 3301(h) as a cross-reference to the schedule or formula required by section 3561 to be filed periodically with the Court of Chancery; (iii) clarifies that section 3303(a) permits a trustor within a governing instrument to vary laws concerning the terms of powers of appointment over trust property; (iv) revises section 3322 regarding the appointment of agents by fiduciaries and the delegation of trust powers to provide that the standard of care applicable to a fiduciary when performing duties delegated to an agent shall apply to the fiduciary when selecting and monitoring the agent (and not to the agent), and to permit trust beneficiaries to release the fiduciary from liability for future conduct in monitoring agents—all to correct inconsistencies and conform the law to prevailing practice; (v) clarifies that under subsection 28 of section 3325 (which already permits a division of a trust for any reason), division along family lines is permitted; (vi) clarifies that under section 3338, the requirement for “holders of powers” to join in nonjudicial settlement agreements includes both those who hold powers of appointment and those who hold powers to remove or appoint fiduciaries or nonfiduciaries; (vii) clarifies that section 3341’s provisions regarding the consequences of a merger also apply in the case of trust decantings under section 3328 where a new trust is not created; (viii) clarifies section 3342 (merely by setting off an existing phrase with dashes) that modification with the trustor’s consent is permitted so long as the provisions as modified could have been included in the trust’s governing instrument if the trust were created on the date of the modification; (ix) adds a new section 3343 providing that where a governing instrument authorizes appointment of a successor trustee, multiple trustees may be appointed and fiduciary duties may be allocated among them; and (x) adds a new section 3344 providing that with respect to grantor trusts under the Internal Revenue Code, certain trustees are deemed to have discretion to reimburse a trustor (i.e., the grantor) of such a trust for that trustor’s income tax liabilities attributable to that trust—but without making the trustor a beneficiary of the trust, and not if the provisions of this section would reduce a charitable deduction available to any person for federal or state income or transfer tax purposes. Section 2 of the Act addresses statutes under Chapter 35 of Title 12 and (i) clarifies in section 3528 that after a decanting, the terms of the predecessor trust’s governing instrument are deemed to include the decanting power, in accordance with federal law requirements regarding certain charitable deductions; (ii) clarifies in section 3528 that the standard under section 3315, governing a trustee’s exercise of discretion, also applies to a trustee’s decanting authority in section 3528; (iii) clarifies subsections (c) and (c)(2) of section 3536 (subsection (c)(2) being moved within subsection (c) and expanded) that a trustor eligible for reimbursement from a trust of that trustor’s income tax liabilities attributable to the trust under section 3344 is not a beneficiary of the trust; (iv) clarifies the wording of subsections (c)(4) and (e) of section 3536 (subsection (c)(4) being created from existing wording in former subsection (c)(1) and expanded) regarding a trustor’s right to release a beneficial interest contingent on surviving the trustor’s spouse so as to accelerate the next succeeding beneficial interests; (v) clarifies section 3544 that a trustee has no duty to inquire into or confirm the validity of previous nonjudicial modifications, decantings, mergers, and the like; (vi) amends section 3545 to allow a trust instrument to be executed at a trustor’s direction (intended for situations where a trustor cannot physically sign the governing instrument, thus paralleling a similar provision that has existed for decades in Delaware’s wills statutes), and clarifies section 3545 that (as is the predominating practice) counterpart execution of trust instruments is permitted (subject to existing requirements regarding witnesses); (vii) modifies section 3547 to provide that takers in default under certain nongeneral powers of appointment cannot be virtually represented by the holders of such powers if there is a material conflict of interest—but also clarifies that those who must consent to the exercise of a power must also consent to any such virtual representation by the holder of the power; (viii) adds a cross-reference within section 3547(e) (regarding virtual representation) to section 3322 (regarding delegation); (ix) modifies section 3570 of Delaware’s Qualified Dispositions in Trust Act to allow a trustor to retain within a trust the ability to appoint and serve as a designated representative for a beneficiary under section 3339; (x) clarifies subsection (a)(2) of section 3585 to provide that the report procedure described in that subsection may be used while the trustee is in the process of resigning (and not just after completion of the act of resignation or the effective date of a resignation); and (xi) clarifies that section 3586 applies to governing instruments (which term is defined in section 3301(e)) and not just to trust instruments. Section 3 of the Act addresses statutes under Chapter 5 of Title 25 and (i) makes technical corrections to sections 501 and 504 regarding the method authorized in 2016 by which the donee of a power of appointment over trust property may avoid the application of the general default rule of section 501(a) of title 25 (which provides that interests in property created by the exercise of such a power of appointment are deemed to have been created at the time of the exercise of the power); and (ii) modifies section 505 to conform it with the Uniform Powers of Appointment Act, by allowing powerholders who have a nongeneral power of appointment the option of exercising the power in trust and creating a further nongeneral power of appointment (and not just a further general power of appointment as the existing language provides). Section 4 of the Act provides effective dates.

This resolution proclaims June 19, 2019 as Juneteenth Independence Day in Delaware and encourages the people of Delaware to reflect upon the significant roles and many contributions of African Americans and to celebrate this day with appropriate activities and events.

The Joint Legislative Oversight and Sunset Committee ("JLOSC") reviewed the Division for the Visually Impaired ("DVI") in 2019. As a result of that review, 31 recommendations for changes affecting DVI were presented for JLOSC's consideration. JLOSC determined that, to properly consider and decide whether to adopt 28 of the recommendations, a task force should be created to research, discuss, and report back to JLOSC its findings on the implementation of the 28 recommendations. JLOSC decided to form the task force through a simple resolution. This Resolution establishes the Joint Legislative Oversight and Sunset Committee Task Force (“Task Force”) on the Division for the Visually Impaired. In addition to the 9 members of the Task Force, several consultants are also named, either individually or by organization, to share their expertise with the Task Force. The Task Force must hold its first meeting by August 15, 2019, and submit a final report of its findings and recommendations to JLOSC by January 3, 2020. The Task force will not approve the implementation of a recommendation or authorize or require a change in any statute, policy, or practice. The Task Force is designed, authorized, and limited to do only the following: - Research the background of and relevant information relating to JLOSC’s Recommendations 2 through 29. - Discuss the merits and concerns of each recommendation. - Report back to JLOSC on what the Task Force found in its research and discussions. Consultants are specified to ensure their participation in the Task Force, while the number of members is kept limited in the interest of meeting quorum and scheduling requirements more easily.

The Joint Legislative Oversight and Sunset Committee ("JLOSC") reviewed the Delaware Health Information Network (“DHIN") in 2019. As a result of that review, 4 recommendations relating to statutory changes to DHIN’s govnering statute were presented for JLOSC's consideration. JLOSC determined that a task force should be created to research, discuss, and report back to JLOSC its findings on the implementation of 3 of the 4 recommendations. JLOSC decided to form the task force through a simple resolution. This Resolution establishes the Joint Legislative Oversight and Sunset Committee Task Force on the Delaware Health Information Network (“DHIN”). In addition to the 11 members of the Task Force, several consultants are also named, to share their expertise with the Task Force. The Task Force must hold its first meeting by August 31, 2019, and submit a final report of its findings and recommendations to JLOSC by January 10, 2020. The Task force will not approve the implementation of a recommendation or authorize or require a change in any statute, policy, or practice. The Task Force is designed, authorized, and limited to do only the following: - Research the background of and relevant information relating to JLOSC’s Recommendations 2, 4, and 6. - Discuss the merits and concerns of each recommendation. - Report back to JLOSC on what the Task Force found in its research and discussions. Consultants are specified to ensure their participation in the Task Force, while the number of members is kept limited in the interest of meeting quorum and scheduling requirements more easily.

This joint resolution is designed to establish a task force to study and make findings concerning the recruitment and retention of volunteer firefighters.

This Act will allow facilities in Sussex County to sell gasoline that does not contain ethanol provided such fuel is for vessels. Sussex County comfortably meets the National Ambient Air Quality Standard for ground level ozone, and removing ethanol from marine fuel will have no significant impact on ambient ozone levels. The State of Maryland now allows the sale of non-ethanol gasoline in certain counties that are adjacent to Sussex County. Delaware currently suffers a competitive business disadvantage by not being allowed to sell non-ethanol fuel for vessels.

In 2009, New Hampshire was the first state to develop a statewide “Gun Shop Project,” reaching out to gun shops regarding the role they can play in suicide prevention. In the years since, at least 21 other states have implemented similar campaigns. This Act establishes the Delaware Gun Shop Project (“Project”), under which the Division of Substance Abuse and Mental Health (“Division”) must develop relevant materials that may be posted conspicuously and available for distribution at Delaware gun shops. This Act requires the Division to promulgate regulations that establish and govern a mechanism to track participation in and efficacy of the Project, and authorizes the Division to promulgate other regulations, such as how the training will be offered and taken, as needed.

In order to promote the development of pyrolysis and gasification facilities in Delaware and realize environmental benefits, this Act creates a classification of post-use polymers and other recoverable feedstocks and acknowledges their distinction from solid waste.

This Act increases the burial benefit upon the death of an individual receiving a pension under the State Employees Pension plan from $7,000 to $8,000.