16 Del. Admin. Code § 101-5.0
Current through Reigster Vol. 28, No. 6, December 1, 2024
Section 101-5.0 - Relief from Disabilities Board5.1 Creation. 5.1.1 The Relief from Disabilities Board is hereby created to carry out the functions and duties pursuant to 11 Del.C. § 1448A(k) and these regulations.5.1.2 The Board is authorized to consider petitions for relief pursuant to 11 Del.C. § 1448A(k) and these regulations arising from mental health adjudications or commitments which occur in the State of Delaware.5.1.3 All legal processes and all documents required by law to be served or filed with the Board shall be served or filed with the Chairperson of the Board at the Department of Safety and Homeland Security, 303 Transportation Circle, Dover, Delaware 19901.5.1.4 Personal service or Service by Certified First Class Mail shall be considered proper service or filing.5.1.5 Service shall be considered complete upon receipt by the Chairperson, or by a person authorized by the Chairperson to accept service, of a Notice of De Novo Judicial Review and all documents as required by section 5.2.2 of these regulations.5.1.6 All official records of the Board or affidavits by the Chairperson as to the content of such records shall be prima facie evidence of all matters required to be kept by the Board.5.1.7 The Board is not a designated agency pursuant to the Administrative Procedures Act and, therefore, shall be subject only to 29 Del.C. § 10161(b).5.1.8 The Board shall adhere to 42 C.F.R. Part 2; 45 C.F.R. Parts 160, 162, and 164; and 16 Del.C. § 1232 in protecting the confidentiality of protected patient health information in the use and discussion of protected patient health information and in the transmission of this information to the NICS database.5.1.9 Pursuant to 11 Del.C. § 1448A(k), the Board shall be comprised of three (3) members, with the Chairperson appointed by and serving at the pleasure of the Secretary of Safety and Homeland Security and the remaining two (2) members appointed by and serving at the pleasure of the Secretary of the Department of Health and Social Services, one of whom shall be a Delaware licensed psychiatrist.5.2 Procedure. 5.2.1 All three Board members must be present to hear a petition for relief and a simple majority shall constitute the decision of the Board.5.2.2 The petition shall contain, at a minimum, the following: 5.2.2.1 The Petitioner's name, address and telephone number;5.2.2.2 The Petitioner's mental health record;5.2.2.3 A certificate from a medical doctor or psychiatrist licensed in this State that the person is no longer suffering from a mental disorder which interferes with or handicaps the person from handling deadly weapons and/or firearms;5.2.2.4 A notarized affidavit signed by the Petitioner stating that the facts and statements contained in the petition are true and correct.5.2.2.5 Any and all documents the Petitioner wishes to introduce or submit to the Board in support of his or her case.5.2.3 The Board shall schedule a hearing on a petition for relief within 60 days from the date of receipt of the petition.5.2.4 Pursuant to Sections 1.4 and 4.0 of these regulations, a petition for relief shall be heard by the Board in a closed and confidential hearing on the record. 5.2.4.1 The record of the hearing shall be maintained by the Chairperson at DSHS for a period of one year from the date of the hearing for purposes of de novo judicial review.5.2.5 The Board shall consider evidence as specified in 11 Del.C. §§ 1448A(k)(2) and (3). In accordance with 11 Del.C. § 1448A(k)(3), the Board may request that the petitioner undergo a clinical evaluation and risk assessment at the recommendation of the Board psychiatrist and if a majority of the Board agrees. The petitioner shall bear the costs of his or her clinical evaluation and/or risk assessment.5.2.6 Relief shall be granted if the Board finds, by a preponderance of the evidence: 5.2.6.1 The Petitioner will not likely act in a manner dangerous to public safety; and,5.2.6.2 Granting the relief will not be contrary to the public interest.5.2.7 The decision of the Board shall be issued in writing explaining its reasons for a denial or grant of relief.5.2.8 The decision of the Board shall be issued as soon as practicable following the hearing.16 Del. Admin. Code § 101-5.0
18 DE Reg. 649( 2/1/2015) (Final)