16 Del. Admin. Code § 4470-9.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 4470-9.0 - Monitoring and Corrective Actions

9.1 On-site visits/interviews

9.1.1 The Department or its designee may perform on-site interviews of a qualified patient or designated caregiver to determine eligibility for the program. The Department may enter the premises of a qualified patient or designated caregiver during business hours for purposes of interviewing a program applicant. Twenty-four (24) hours' notice will be provided to the qualified patient or designated caregiver prior to an on-site interview.

9.1.2 All qualified patients or designated caregivers shall provide the Department or the Department's designee immediate access to any material and information necessary for determining eligibility with these requirements.

9.1.3 Failure by the qualified patient or designated caregiver to provide the Department access to the premises or information may result in action up to and including the revocation of the qualified patient or designated caregiver registry identification card and referral to state law enforcement.

9.1.4 Any failure to adhere to these rules, documented by the Department during an interview, may result in sanctions, including suspension, revocation, non-renewal or denial of licensure and referral to state or local law enforcement.

9.1.5 The Department shall refer credible criminal complaints against a qualified patient or designated caregiver to the appropriate state or local authorities.

9.2 Corrective action

9.2.1 If violations of these requirements are cited as a result of monitoring or police contact, the qualified patient or primary caregiver shall be provided with an official written report of the findings within 30 days following the monitoring visit.

9.2.2 Unless otherwise specified by the Department, the qualified patient or designated caregiver shall correct the violation within 5 calendar days of receipt of the official written report citing the violation.

9.2.3 The violation shall not be deemed corrected until the Department verifies in writing after receiving notice of the corrective action that the corrective action is satisfactory.

9.2.4 If the violation has not been corrected, the Department may issue a notice of contemplated action to revoke the qualified patient's or designated caregiver's registry identification card.

9.2.5 Suspension of registry identification card without prior hearing

9.2.5.1 In accordance with the 16 Del.C. Ch. 49A, if immediate action is required to protect the health and safety of the general public, the Department may suspend the qualified patient or designated caregiver registry identification card without notice.

9.2.5.1.1 A qualified patient or designated caregiver whose registry identification card has been summarily suspended may request a record review no later than 30 calendar days after the registry identification card was summarily suspended.

9.2.5.1.2 The record review requested subsequent to a summary suspension shall be conducted by the Department.

9.2.5.1.3 The Department shall conduct the record review on the summary suspension by reviewing all documents submitted by both card holder and the Department.

9.2.5.1.4 The sole issue at a record review on a summary suspension is whether the card holder's registry identification card shall remain suspended pending a final adjudicatory hearing and ruling.

9.2.5.1.5 A card holder given notice of summary suspension by the Division may submit a written request to the Department for a record review. To be effective, the written request shall:

9.2.5.1.5.1 Be made within 30 calendar days, as determined by the postmark, from the date of the notice issued by the Department;

9.2.5.1.5.2 Be properly addressed to the medical marijuana program;

9.2.5.1.5.3 State the applicant's name, address, and telephone numbers;

9.2.5.1.5.4 Provide a brief narrative rebutting the circumstances of the suspension; and

9.2.5.1.5.5 Additional documentation must be included with the request for a record review.

9.2.5.1.6 A card holder may request a hearing under subsection 9.4 following the record review.

9.3 Suspension, Revocation and Appeal Process

9.3.1 Participation in the medical marijuana program by a qualified patient or designated caregiver does not relieve the qualified patient or designated caregiver from:

9.3.1.1 Criminal prosecution or civil penalties for activities not authorized in this rule and act;

9.3.1.2 Liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of marijuana; or

9.3.1.3 Criminal prosecution or civil penalty for possession, distribution or transfers of marijuana or use of marijuana:

9.3.1.3.1 In a school bus or public vehicle;

9.3.1.3.2 On school grounds or property;

9.3.1.3.3 In the workplace of the qualified patient's or designated caregiver's employment;

9.3.1.3.4 At a public park, recreation center, youth center or other public place;

9.3.1.3.5 To a person not approved by the Department pursuant to this rule;

9.3.1.3.6 Outside Delaware or attempts to obtain or transport marijuana from outside Delaware; or

9.3.1.3.7 That exceeds the allotted amount of usable medical use marijuana.

9.3.1.4 Criminal prosecution or civil penalties related to growing or cultivating marijuana.

9.3.2 Revocation of registry identification card

9.3.2.1 Violation of any provision of this rule may result in either the summary suspension of the qualified patient's or designated caregiver's registry identification card, or a notice of contemplated action to suspend or revoke the qualified patient's or designated caregiver's registry identification card, and all lawful privileges under the act.

9.3.3 Grounds for revocation or suspension of registry identification card, denial of renewal application for registry identification card.

9.3.3.1 A registry identification card may be revoked or suspended, and a renewal application may be denied for:

9.3.3.1.1 Failure to comply with any provisions of these requirements;

9.3.3.1.2 Failure to allow a monitoring visit by authorized representatives of the Department;

9.3.3.1.3 The discovery of repeated related criminal misconduct or criminal law violations of these requirements during monitoring visits.

9.4 Request for hearing

9.4.1 A qualified patient or designated caregiver whose registry identification card has been summarily suspended, or who has received a notice of contemplated action to suspend or revoke, may request a hearing for the purpose of review of such action. A cardholder whose card was summarily suspended and who requested a record review under subsection 9.2.5 may request a hearing following the record review. The request for hearing shall be filed within 30 calendar days of the date the action is taken, the notice of contemplated action is received, or the record review decision is received. The request shall include the following:

9.4.1.1 A statement of the facts relevant to the review of the action;

9.4.1.2 A statement of the provision of the act and the rules promulgated under the act that are relevant to the review of the action;

9.4.1.3 A statement of the arguments that the qualified patient/designated caregiver considers relevant to the review of the action; and

9.4.1.4 Any other evidence considered relevant.

9.5 Hearing procedure

9.5.1 As soon as possible, but in no event later than 60 calendar days after the request for hearing is received, the Department shall convene a hearing.

9.5.2 Notice of the hearing shall be issued in accordance with § 10122 of Title 29.

9.5.2.1 There shall be no public notice of the hearing in accordance with § 4920A of Title 16.

9.5.3 An individual may request an expedited hearing.

9.5.3.1 The Department shall schedule the hearing on an expedited basis provided that the Department receives the individual's written request for an expedited hearing within five (5) calendar days from the date on which the individual received notification of the Department's decision to suspend the individual's card, or the date on which the individual received the final determination following the record review.

9.5.3.2 The Department shall convene an expedited hearing within 15 calendar days of the receipt by the Department of such a request.

9.5.3.3 The Department shall make a determination based upon the evidence presented.

9.5.3.4 A written copy of the determination and the reasons upon which it is based shall be sent to the individual within 30 calendar days.

9.5.4 Telephonic hearings

9.5.4.1 An individual cardholder may request a telephonic hearing at the time of the request for a hearing. Immediately after the parties agree to conduct the hearing by telephone, notice of the telephonic hearing shall be made to all parties and shall include all necessary telephone numbers.

9.5.4.2 Any party that has agreed to a telephonic hearing, but subsequently requests an in-person hearing shall do so in writing to the Department no later than 10 calendar days before the scheduled date of the hearing. The decision to grant or deny the request for an in-person hearing shall be at the discretion of the Department for good cause shown. The Department's decision to grant or deny the hearing shall be issued in writing and shall include the specific reasons for granting or denying the request. Should the Department grant the request, the hearing shall be rescheduled to a time convenient for all parties. Should the Department deny the request, the telephonic hearing shall proceed as scheduled.

9.5.4.3 The location or locations of the parties during the hearing shall have a speaker telephone and technology available so that all shall hear the proceedings and documents shall be transmitted between witnesses and the Department.

9.5.4.4 Failure to provide the correct telephone number or failure to be available at the commencement of the hearing shall be treated as a failure to appear and shall subject the petitioner to a default judgment.

9.5.4.5 The in-person presence of some parties or witnesses at the hearing does not prevent the participation of other parties or witnesses by telephone with prior approval of the Department.

9.5.5 During an administrative hearing:

9.5.5.1 The individual has the right to be represented by counsel.

9.5.5.2 All statements made shall be under oath.

9.5.5.3 The individual has the right to examine and cross-examine witnesses.

9.5.5.4 The individual has the right to present evidence.

9.5.6 A stenographic recording will be made by a qualified court reporter. At the request and expense of any party, such record shall be transcribed with a copy to the other party.

9.5.7 Following the hearing, the Department shall make a determination based upon the evidence presented.

9.5.8 Upon reaching its conclusion of law and determining an appropriate disciplinary action, the Department shall issue a written decision and order in accordance with § 10128 of Title 29.

9.5.9 All decisions of the Department shall be final and conclusive. Where the individual is in disagreement with the action of the Department, the individual may appeal the Department's decision to the Superior Court within 30 days of service or of the postmarked date of the copy of the decision mailed to the individual. The appeal shall be on the record to the Superior Court and shall be as provided in §§10142 - 10145 of Title 29.

9.5.10 A written copy of the determination and the reasons upon which it is based shall be sent to the patient or caregiver cardholder within 30 calendar days.

16 Del. Admin. Code § 4470-9.0

17 DE Reg. 738(1/1/2014)
23 DE Reg. 667(2/1/2020)
24 DE Reg. 485( 11/1/2020) (Final)