19 Del. Admin. Code §§ 1401-13.0

Current through Register Vol. 27, No. 12, June 1, 2024

Section 1401-13.0 - Family and Medical Leave Insurance Appeal Board

13.1 A covered individual or employer may appeal to the Board within 30 days from the date of the Division's or the private plan's internal review determination. At all times, a covered individual, employer, or witness are required to keep all information related to the claim or appeal confidential and take reasonable steps to ensure confidentiality.

13.1.1 A covered individual may request, when filing an appeal, a disposition of the matter on the record without a hearing and may submit additional documents or evidence without appearing at a hearing. The Board shall provide notice within 5 days of the filing of an appeal that a date has been scheduled for disposition of the matter on the record, subject to the Board's schedule.

13.1.2 If a hearing is requested, the Board shall provide notice within 5 days of the filing of an appeal that a date has been set for an appeal hearing subject to the Board's schedule.

13.1.2.1 All requests for continuances or postponements are within the discretion of the Board.

13.1.2.2 Any request for a continuance or postponement of any hearing must be made via the online portal no later than 12:00 p.m. the day prior to the hearing. All parties will be automatically notified of this request. The request shall state the reasons for which the continuance or postponement is requested.

13.1.2.3 All cases that have been continued or postponed shall be rescheduled at the discretion of the Board.

13.1.3 An appealing party may withdraw its appeal at any time prior to the hearing. All requests for withdrawal must be made via the Division's online portal.

13.1.4 Failure to appear at a scheduled hearing may result in an unfavorable decision. If the party who filed the appeal does not participate, the Board may proceed to make its decision on the record or may dismiss the appeal on the ground of nonappearance unless it appears that there is good cause for a postponement.

13.1.5 The Board shall make a decision on the appeal within 60 days of the hearing or disposition date.

13.1.6 Hearings are scheduled to last 30 minutes from the time the presiding member calls the case. The Board may extend the length of the hearing at its discretion.

13.2 The Board will have access to all of the Division's records regarding the matter under appeal. Either party may submit additional, relevant information that they wish the Board to consider. Any supplemental information shall be provided to the Board and all parties at least 5 business days before the hearing date. No party may submit more than 40 pages of additional documentation. All additional documentation must be filed electronically in the Division's online portal and all parties will be notified when additional documentation has been filed by either party.

13.3 A party may request subpoenas to compel a witness to appear at a hearing.

13.3.1 This request shall be in writing and shall be received by the Board at least 10 business days prior to the hearing or disposition date via the Division's online portal.

13.3.2 The issuance of subpoenas shall be at the sole discretion of the Board and its attorney.

13.3.3 A subpoena for a witness must state the full name and address of the person to be subpoenaed. The Board limits witness subpoena requests to 2 per party. Upon a showing of extenuating circumstances and the filing of a motion by a party, the Board may, at its discretion, permit additional subpoenas to be issued.

13.3.4 Service of a subpoena for a witness to appear at a hearing shall be made by personally delivering the subpoena to the witness. Service shall be made at least 4 days prior to the hearing or disposition date.

13.3.5 The parties must submit proof of service of the subpoena.

13.4 Discovery is generally not permitted. Any request for discovery is at the discretion of the Board.

13.5 A party may represent themselves, may utilize a designated assistant as described in this regulation, or may be represented by an attorney admitted to practice law in the State of Delaware. The designated assistant cannot be an employee of the Division of Paid Leave. A corporation or other artificial entity must be represented by an authorized owner, officer, or employee of the entity, or by an attorney admitted to practice law in the State of Delaware. Attorneys-at-law should enter an appearance with the Board's clerk prior to the hearing.

13.6 A series of individual requests for an appeal hearing may be consolidated into a single group hearing when the sole issue involved is one of State or federal law, regulation, or policy. The individual appellant in a group hearing will be permitted to present his case or be represented by an authorized representative. If, at any stage in a group hearing, the Board finds that any individual appeal involved questions of fact unique to an individual appellant, that appeal shall be severed and heard individually.

13.7 Board hearings shall be held electronically, with all parties or witnesses participating by telephone, video, or other electronic means. At the discretion of the Board, a hearing may be held in person, upon a showing of good cause.

13.8 Any party to a Board proceeding may file and serve a motion at any time unless otherwise provided. A written motion shall contain a concise statement of the facts and law which support it and a specific request for relief. Any case dispositive motion, including a motion to dismiss, should be filed and served as soon as possible prior to the start of the hearing. A written reply to a case dispositive motion may be filed. All motions shall be filed via the Division's online portal and all parties will be notified when this filing occurs.

13.9 The Board may permit oral motions and oral or written responses to be made during a hearing.

13.10 At least 5 business days before the hearing, the parties shall exchange proposed exhibits and witness summaries with copies to the Division; all documents shall be submitted electronically by 5:00 p.m. at least 5 business days prior to the hearing. Anything submitted after 5:00 p.m. shall be considered received the next business day. No documents or evidence will be accepted in physical form.

13.11 The Board has the authority to restrict the issues raised at the hearing to those raised in the appeal or any response to it.

13.12 A verbatim record of the proceedings before the Board will be made and archived electronically. The record will not be transcribed unless and until an appeal of the Board's decision is taken to the Superior Court of the State of Delaware.

13.13 All testimony before the Board shall be taken under oath or affirmation. Evidence, which is irrelevant, immaterial, or unduly repetitive may be excluded. Delaware's rules of evidence shall not apply to any documents submitted or testimony given.

13.14 After rendering an appeal decision, if the full Board concurs, it may suggest amendments to the Paid Family Medical Leave program regulations to the Secretary of Labor.

13.15 The Division of Paid Leave will provide reasonable administrative assistance to all parties involved in an appeal to ensure online forms are properly completed and supplement documentation is uploaded.

19 Del. Admin. Code §§ 1401-13.0

27 DE Reg. 52 (7/1/2023) (Final)