Rep. Jeff Spiegelman

The purpose of this legislation is to promote sustained economic growth and stability by establishing a fund to provide grants, loans or other economic assistance to businesses or public entities that invest in constructing, renovating or improving infrastructure for sites that will attract new businesses or expand existing businesses within the State to initiate economic development opportunities that will create a significant number of direct, permanent, quality, full-time jobs. There is intense competition between the states to attract and to keep vital businesses that create and maintain these direct, quality employment opportunities. Therefore, it is critical to expand and sustain economic growth within the State to consistently maintain readily available commercial, industrial sites to attract new business, or expand existing businesses. The delay in converting completely undeveloped sites into sites that are fully capable of conducting business may result in the loss of significant business opportunities that benefit the public. The site readiness fund will provide economic assistance to qualified businesses or public entities to renovate, construct, or improve commercial, industrial sites that are readily available to new businesses, established businesses that are considering moving to the State or existing businesses within the State that need additional sites to remain or expand within the State. To ensure fiscal accountability that site readiness funds are expended for their intended purpose, the applications will be administered in accordance with the existing regulations that govern applications made to the Strategic Fund. The Council on Development Finance will review the applications and supporting financial information to make recommendations to the Director of the Division of Small Business concerning the viability of the proposed project and whether the project meets the criteria established by this legislation to award funding. The Director has the final authority to award funding based on the Council’s recommendations and the requirements imposed by this legislation. The Director shall administer any such award in accordance with the requirements of Chapter 87A of Title 29 of the Delaware Code and the existing Strategic Fund regulations. To protect the assets of the Fund, the Director may require recapture provisions in any contract agreements for grants, loans or other economic assistance that recover for any substantial or complete cessation of operations or failure to reach any employment or other benchmarks. The Director may require the applicant to report financial statements and project progress reports to determine that expenditures on the project are consistent with the purpose of the Fund.

Section 1 of the Act amends subsection (b)(1) of section 12A-103 of Title 6 to remove a reference to testamentary trusts that is either a redundancy or otherwise might conflict with new section 3550 of Title 12 (which is a part of the Act). Section 2 of the Act addresses statutes under Chapter 33 of Title 12 and (i) amends section 3315(b) to make clear that a discretionary interest in a trust is not a property right and to define more clearly what constitutes a discretionary interest, and also to make clear that these clarifications do not affect the standard of review applicable to the discretion of a trustee or other fiduciary; (ii) amends section 3326 to expand its application to the resignation of officeholders (such as advisers under section 3313 or designated representatives under section 3339) and not just to the resignation of trustees; (iii) amends section 3327 to expand its application to the removal of officeholders (such as advisers under section 3313 or designated representatives under section 3339) and not just to the removal of trustees, and to permit other officeholders (in addition to trustors and beneficiaries) to petition to remove an officeholder; (iv) amends section 3331 to expand its application to governing instruments (beyond just wills and trust instruments, such that it is not intended to change the statute’s application to wills and trust instruments); (v) amends section 3339 to make clear that a designated representative begins to serve when the representative is appointed (and not merely when authorized) and has accepted the role (whether by written acceptance or through service or other action signifying acceptance), to prioritize appointment methods (that is, to provide that certain appointment methods are available if a designated representative is not appointed under previously-enumerated methods), to define for what purposes a designated representative may be appointed, to provide that the surviving parent or parents or custodial parent of a minor for whom a designated beneficiary has been appointed must be given notice of such appointment, to enable a trustor to appoint a designated representative to represent and bind beneficiaries who are minors or are otherwise described in paragraph (b)(2) of section 3339 in any nonjudicial matter, to enable a beneficiary to appoint a designated representative to represent and bind such beneficiary in any nonjudicial matter, and to provide that a person accepting appointment as a designated representative submits to personal jurisdiction in this State regarding any matter involving the trust (without precluding other methods of obtaining jurisdiction over the designated representative); (vi) amends section 3342 to make clear that, consistent with section 3303 of Title 12, a trustor may opt out of the application of section 3342 by express reference; and (vii) amends section 3344 to make clear that the statute applies unless a governing instrument expressly provides that a trustor may not be reimbursed by the trust for the trustor’s income tax liability, to expand the scope of permissible reimbursement to include county, metropolitan-region, city, local, foreign, and other income taxes (in addition to state income taxes), and to make clear that the statute does not apply if it would eliminate or reduce a marital or charitable deduction available to any person for state or federal income, gift, or estate tax purposes. Section 3 of the Act addresses statutes under Chapter 35 of Title 12 and (i) amends section 3536 to add to the flush language of subsection (c) to provide that a person who becomes a beneficiary of a trust due to the exercise of a power of appointment by someone other than such person is not considered under this title to be a trustor of a trust—even if the person who so became the beneficiary created and funded the trust and granted the power of appointment of another, such that if the trustor did not otherwise retain a beneficial interest in the trust that was otherwise reachable (e.g., the trustor did not name himself as a beneficiary of the trust at the time it was created), the mere fact that some other person exercises a power of appointment to later make the trustor a beneficiary will not create an interest that is reachable by the trustor’s creditors—which change would abrogate the common law relation back doctrine as it pertains to who is to be deemed the trustor of a trust created upon exercise of a power of appointment, if such doctrine were extant in Delaware, although the applicability of the common law relation back doctrine to this particular issue does not appear to have been adjudicated or acknowledged in any decisional case law in Delaware; (ii) amends section 3545 to add a new subsection (c), which confirms that other writings that create, modify, or revoke trusts and that are not described in subsection (a) of section 3545 are validly executed if they are executed in conformity with subsection (a), but also confirms that subsection (c) does not limit the creation, modification, or revocation of a trust by other means that Delaware law permits, and further confirms that subsection (c) does not apply to trusts formed under Delaware’s Statutory Trust Act and other trusts formed for the purpose of consummating a commercial transaction; and (iii) adds a new section 3550 providing that governing instruments and certain other trust-related documents, if validly executed under the sections of the Delaware Code that apply to those documents, may also be executed under Chapter 12A of Title 6 of the Delaware Code (the Uniform Electronic Transactions Act). Section 4 of the Act provides that Sections 2 and 3 apply to trust whenever created.

This Act clarifies various aspects of the State’s procedures to operate its unclaimed property program, including promoting and determining holder compliance, processing owner claims, and preventing fraudulent claims. Sections 1, 13, and 15 confirm current examination practice and address recent court decisions that, to determine a holder’s compliance, the State Escheator may request and review records to verify the completeness and accuracy of the holder’s records, even if such records may not identify property reportable to the State, and that the State may initiate an examination to determine compliance for any reason and is under no obligation to provide a detailed or specific reason or justification. Section 2 clarifies that the dormancy period for various types of bonds is 3 years, which confirms current practice to treat these property types similar to securities-related property. This section also clarifies and addresses recent changes made by the SECURE Act that impact the escheatment of Individual Retirement Accounts. This Section takes effect on August 1, 2021, for the next annual reporting period. Section 3 clarifies that holders whose business is described in 30 Del. C. § 2906 (“the business of operating a restaurant, snack bar, soda fountain, take-out food service, catering service, private eating or drinking club, or other eating establishment or service”) do not have to report and remit unredeemed gift card property that had an original issue amount of $5 or less. This Section further clarifies that no report is required from any holder for unredeemed gift cards having an aggregate face value of less than $5000 for the reporting period. Sections 4 and 13 clarify and confirm current practice that owner notification (“due diligence”) letters may be sent at any time during an examination at the holder’s initiative or at the direction of the State Escheator. Section 13 expressly allows the State to mail owner notification letters during an examination. Sections 5 and 24 clarify and confirm current practice that the State Escheator is only required to publish or provide upon request only last known address identifiers, which currently is considered city and state, rather than a property owner’s full address. Section 6 limits the scope of the State’s holder indemnification to property claimed by other jurisdictions and excludes penalties, as defined, imposed by other jurisdictions from the State’s indemnification obligations. Sections 7 and 14 clarify and confirm current practice by aligning the scope (included years and legal entities) of a Voluntary Disclosure Agreement (“VDA”) or a subsequent examination, which is to be determined as of the earlier of the following: the date the VDA invitation letter is delivered, the date a holder elects to enter the VDA program, or the date the notice of examination is delivered. Sections 8 and 9 clarify and confirm current practice related to the return of securities-related property to owners. Section 8 makes a technical correction to change the imprecise 18-month time limit to an exact time period of 558 days (31 days multiplied by 18 months), to allow owners the maximum amount of time under the law to file a claim to recover their securities or market value as of the date of the claim, rather than the liquidated cash value. Because an owner’s right may be significantly altered after the expiration of this time period, precise calculation of this time period to the owner’s benefit is necessary. The 558-day period is the current standard applied by the State Escheator to determine the return of securities or market value as of the date of the claim versus liquidated cash value, and codification of the 558-day period avoids additional software development costs. This Section also clarifies that claimants receive any dividends that the State received while it held the security. Sections 8 and 9 clarify that the 558-day time limit begins to run based on the notice provided as required by the statute in effect when the property was delivered to the State and ends based on the claimant’s first documented contact with the State if the claim is made within 60 days of such contact. Section 10 clarifies procedures for the denial of a claim and the investigation of potentially fraudulent claims. Section 11 makes a technical correction to change the imprecise 4-month time limit to an exact time period of 120 days for claimant appeals to the Tax Appeal Board. Section 12 clarifies that the State may send Verified Report and Compliance Review notices to the appropriate legal entity, which may include an agent, affiliate, or subsidiary of the reporting legal entity. Section 14 establishes a permanent expedited examination program for any company whose examination began after February 2, 2017. Companies who complete their examinations within the parameters of the permanent expedited examination program will receive the benefit of a waiver of penalties and interest, except for a nominal, non-waivable 1% interest assessment. Companies who receive a notice of examination after August 1, 2021, and who do not complete an expedited examination are subject to a minimum, non-waivable 20% interest assessment, up to an assessment of full interest and penalties under the statute. Section 16 clarifies that the Secretary of State may send notices inviting holders to participate in the VDA program by any commercially reasonable means that includes evidence of delivery. This Section establishes that holders will have a 90-day period during which holders may enter the VDA program or may request to expedite their examination conducted by the State Escheator. Holders who neither enter the VDA program nor elect to expedite their examination will be referred to the State Escheator for a conventional examination. Section 17 prohibits the use of documents obtained in an examination initiated by Delaware to be used in a multistate examination, unless the holder agrees to such use in writing. This Section applies to examinations initiated after August 1, 2021. Sections 18 and 20 make a technical correction for consistent nomenclature of the “statement of findings” and “request for payment” issued at the conclusion of an examination. Section 19 requires exclusively hourly compensation to be paid to third-party audit firms, except for examinations of accounts or policies of insurance and securities-related property. This Section also requires third-party audit firms to comply with the State’s standard non-disclosure agreement requirements, regardless of whether the holder under examination agrees to such requirements. Finally, this section clarifies which senior unclaimed property positions in the Department of Finance are prohibited from vendor employment for a 2-year period. Sections 21 and 22 simplify and clarify the application and possible waivers of interest and penalties for past-due property. To encourage voluntary annual compliance and participation in the Secretary of State’s VDA program, under this Act, interest and penalties may be waived by the State Escheator, or Secretary of State for VDAs, in all circumstances, except the following: 1) Past-due property determined in an expedited examination as established by the Act will be subject to a nominal, non-waivable 1% per incident interest assessment; and 2) Past-due property determined in a conventional, non-expedited examination initiated after August 1, 2021, will be subject to a minimum, non-waivable 20% per incident interest assessment. Section 23 clarifies and confirms current practice regarding limitations on finder agreements to locate property. Section 24 expressly applies the confidentiality requirements of § 1189 to state contractors, such as third-party audit firms. This Section also excludes policies and procedures related to the determination of claims and fraud prevention measures from disclosure as a public record under the Freedom of Information Act. Sections 1, 4, 9, 10, 11, 13, 15, 18, 20, and 22 of this Act shall apply retroactively to any claims, examinations, or litigation pending as of the effective date of this legislation. Sections 2, 3, 5, 6, 7, 8, 12, 14, 16, 17, 19, 21, 23, and 24 of this Act take effect on August 1, 2021. This bill also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This Act does the following: (1) Removes the requirement that applicants for initial and continuing educator licenses obtain a passing score on an approved performance assessment. (2) In place of the performance assessment requirement, requires professional development and mentoring activities include a focus on acquisition of pedagogical knowledge and the ability to apply that knowledge to meet student needs and requires the Department of Education (Department) to establish a committee of stakeholders to gather input and make recommendations on how to achieve professional development and mentoring activities that satisfy the requirements. (3) Removes requirements related to performance assessments, including reporting requirements and rulemaking requirements, from Chapter 12 of Title 14. (4) Allows individuals who serve in educator roles that are not teaching positions to receive their Delaware educator license by changing "teaching experience" to "experience as an educator" in § 1210(d) of Title 14 and § 1211(c) of Title 14. (5) Requires the Department to ensure there are a variety of professional development opportunities across different modes that meet a high standard of quality, including evidence-based programs. (6) In place of the performance assessment requirement for participants in alternative routes for teacher licensure and certification programs and participants in alternative routes to certification programs for teachers of students with disabilities, requires an assessment of program participants' abilities to apply pedagogical skills to meet the needs of students and requires the Department to establish a committee of stakeholders to gather input and make recommendations on how to assess the pedagogical skills of program participants. (7) In place of a performance assessment requirement, requires that educator preparation programs assess prospective educators' ability to apply pedagogical skills to meet student needs and requires the Department to establish a committee of stakeholders to gather input and make recommendations on how to assess the pedagogical skills of program participants. (8) Makes corrections, including standardizing references to the educator evaluation system and changing "certificate" to "license" in places where improperly used. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This Act allows retail dealers in Sussex County to sell gasoline that does not contain ethanol if the gasoline is being used in watercraft. 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.

This Act, known as the Telehealth Access Preservation and Modernization Act of 2021, continues and enhances Delawareans’ access to telehealth and telemedicine services and, through the adoption of the Interstate Medical Licensure Compact, ensures that telehealth services can be provided through qualified medical practitioners in a streamlined and efficient pathway to licensure that meets the health care delivery system needs of the 21st century. With respect to telemedicine and telehealth, this Act consolidates the existing law relating to telehealth within a single new chapter applicable to all health-care providers authorized to practice telemedicine and participate in telehealth and makes permanent the telehealth flexibilities put in place for the Covid-19 pandemic. The Act carries through many of the changes embodied in the Covid-19 telehealth legislation passed by the 150th General Assembly in 2020 (HS 1 for HB 348 with HA1, signed 7/17/20), which will otherwise expire on July 1, 2021. The changes made in HB 348 that are made permanent by this Act include: 1. Removing all existing Title 24 statutory requirements that patients present in-person before telemedicine services may be provided. This Act continues the suspension of those requirements, but specifies that the requirement that a patient present in-person prior to the delivery of telemedicine services and telehealth is excused only under circumstances rendering an in-person examination impractical or when there is already an existing relationship established. 2. Modernizing the modality of permissible telemedicine and telehealth services; instead of limiting telehealth to interactions that must involve both audio and visual technology; this Act preserves flexibility for situations where patients do not have access to broadband connections or smartphones and need to consult with a physician by landline or audio-only cell phone, subject to existing professional standard of care requirements. Audio and visual visits will continue to be the preferable method for delivery of telehealth and telemedicine services. This Act also consolidates telehealth and telemedicine scope of practice, which currently appear in each separate chapters of Title 24 pertaining to regulated practitioners in order to provide consistent telehealth practice across license categories. This is increasingly important for facilitating integrated health-care services delivery, but it does not limit any of the existing authority of the State’s professional licensing boards in Title 24 to regulate their respective licensed professions and occupations. This Act adopts the Interstate Medical Licensure Compact (IMLC) in Delaware, joining the 29 States that are already members of the IMLC, including many of our neighboring states (Maryland is a member; Pennsylvania is in process of implementing the Compact; New Jersey has introduced IMLC legislation). https://www.imlcc.org/participating-states/ The long-term benefits of telehealth are best realized when accompanied by cross-state medical licensure capabilities available through adoption of the Interstate Medical Licensure Compact. The Compact creates a voluntary, expedited pathway to state licensure for physicians who want to practice medicine in multiple states. An eligible physician can qualify to practice medicine in multiple states by completing one application within the Compact, and receipt of separate licenses from each state in which the physician intends to practice. The Compact does not change the scope of Delaware’s authority to regulate physician practice under the existing Medical Practice Act. It simply creates another pathway for licensure.

This Act recognizes the statutory authority of the Governor to act in the event of an emergency or disaster. During protracted emergencies and disasters, particularly those lasting more than 30 days, good governance requires participation by the General Assembly to approve renewal of Emergency Orders. This approval requirement may be waived only when it is not possible for both houses of the General Assembly to convene a quorum. The Governor retains the authority to terminate Emergency Orders without approval when the emergency or disaster has passed. Any new non-weather related emergency order issued within 6 months of the termination of a prior order and based upon substantially similar reasons shall be invalid unless approved by the General Assembly. Additionally, any non-weather related emergency order that requires the closure of any business, industry, religious, or non-profit facility must specifically delineate which type of business or facilities are to be closed.

This Act allows nurse practitioners and physician assistants to recommend medical marijuana for adult patients. This Act does not require the Department of Health and Social Services to promulgate new regulations before implementing this Act because § 10113 of Title 29 exempts amendments to existing regulations to make them consistent with changes in basic law from the process otherwise required under Chapter 101 of Title 29. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This Act is the first leg of a Constitutional Amendment reflecting the recommendations of the Advisory Panel to the Delaware Economic and Financial Advisory Council (DEFAC) on Potential Fiscal Controls and Budget Smoothing Mechanisms established as per House Joint Resolution 8 of the 149th General Assembly (Panel). This Act would build upon the State’s existing appropriation limit methodology by moving the Budget Reserve Account into a newly defined Budget Stabilization Fund, defining rules for deposits to and withdrawals from said Budget Stabilization Fund, and adding a check of the appropriation limit against an index comprised of relevant indicators of growth of the State’s economy. The Panel further recommended that any final adoption of the structural budget reforms included in this Act be accompanied by statutory enactment of structural reforms to the Personal Income Tax by broadening the tax base as initially recommended by the DEFAC Advisory Council of Revenues report dated May 2015 and further detailed in the Panel’s report dated June 1, 2018.

Section 1 of this Act revises the following definitions: (1) “Dormant captive insurance company”, to change the criteria review period from a calendar year to a continuous 12-month period. (2) "Pure captive insurance company", to clarify that a pure captive insurer may insure its parent, its parent's affiliates, or a controlled unaffiliated business. (3) “Series”, to allow a registered series to be licensed as a captive insurer. Section 2 of this Act clarifies that a pure captive insurer may insure its parent, its parent’s affiliates, or a controlled unaffiliated business. Section 2 of this Act also expands the captive insurance licensing authority for a series as defined under Chapter 69 of Title 18 to allow a Delaware series to be licensed as an agency captive insurance company. Section 3 of this Act allows certain captive insurers to select the Delaware series form of business organization. Section 4 of this Act makes the provisions of §§ 2702, 2703, and 2706 of Title 18 applicable to captive insurance companies. In addition, this Act makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual. This Substitute Bill differs from Senate Bill No. 36 as follows: (1) By removing new definitions for “policy” and “premium” and amending definitions for “dormant captive insurance company” and “series” as indicated in Section 1 of this Act. (2) By clarifying that a pure captive insurer may insure its parent, its parent’s affiliate, or a controlled unaffiliated business as indicated in Section 2 of this Act. (3) By removing authority for a series to apply for a certificate of authority as a branch or reciprocal captive insurance company. (4) By making §§ 2702 and 2703 of Title 18 applicable to captive insurance companies.