Issue 525 - October 28, 2021
Administration Moves to Keep Options
Open on Mandatory Masking in Schools
OCTOBER 28, 2021 -- The Department of Education is moving to retain the option of requiring mandating masking in all Delaware schools beyond February.

The process that led to the current mask mandate began on August 10 when Governor John Carney announced that everyone, kindergarten-age and older, in K-12 schools and child care homes and centers, must wear face coverings while indoors. 

On August 13, the Department of Education instituted an emergency regulation to carry out the governor's directive.  The regulation was published in the September issue of the Delaware Register of Regulations.

Under Delaware law, if “an agency determines that an imminent peril to the public health, safety or welfare requires the adoption, amendment or repeal of a regulation … the agency may proceed to act without prior notice or hearing.”

Emergency regulations have a limited maximum lifespan of 120 days, and may be renewed once for a additional period of up to 60 days – or 180 days in all. Thus, the Department of Education’s emergency regulation could be kept in place until February 9, 2022.

In this month's Register of Regulations, the DOE is proposing a new regulation for mandatory school masking that would have no expiration date.

In an email sent to all legislators earlier today, Natalie Criscenzo, the legislative liaison for Governor John Carney, said "there has been no change to the current policy, and there have been no decisions made about next steps."   

Ms. Criscenzo said that since the rule-making process takes several months, the Department of Education (DOE) and the Department of Health and Social Services (DHSS) began now to preserve all options once the emergency regulation expires in February.

"The governor and his team have not made any decision to extend the mask requirement beyond February," Ms. Criscenzo told lawmakers. "​It's also important to note that the administration can repeal a rule at any time.  So as soon as conditions allow, the requirement will be lifted." 

No one in the governor's office, the Department of Education, or the Department of Health and Social Services have given any indication of what conditions would need to be observed for the mask mandate to be rescinded.

The following (815 Health Examinations and Screening) is the Department of Education’s proposed mask regulation as published in the October issue of the Delaware Register of Regulations. NOTE: Two additional regulatory changes, containing the same language noted below, are also published in this month's issue of the Delaware Register of Regulations as "933 DELACARE: Regulations for Early Care and Education and School-Age Centers" and "934 Regulations for Family and Large Family Child Care Homes."

5.3 COVID-19 Mitigation and Prevention in Early Care and Education and School-Age Centers

5.3.1 All persons or associations conducting child care as defined in 14 Del.C. §3002A(1) shall recommend mask use by children ages 2 through pre-kindergarten and shall require mask use by children in kindergarten through twelfth grade, staff, family members, and visitors inside the child care facility, regardless of vaccination status.

5.3.2 Persons who have a medical condition or disability that prevents that person from wearing a mask can request a reasonable accommodation from the child care facility.

5.3.3 Masks are not required in child care facilities:

  • 5.3.3.1 When seated at a table to eat or drink.

  • 5.3.3.2 When asleep.

  • 5.3.3.3 When engaged in any activity that makes wearing a mask not feasible, such as swimming.

  • 5.3.3.4 When a person is in a personal space (i.e., single office) and others outside of that person’s household are not present.

  • 5.3.3.5 When outdoors.

  • 5.3.3.6 When children are not in the building.

5.3.4 All child care facilities that provide bus service to and from the child care facility shall recommend mask use by children ages 2 through pre-kindergarten and shall require mask use by children in kindergarten through twelfth grade, faculty, staff, and visitors riding school buses, regardless of vaccination status.

Citizens wishing to offer an opinion on the proposed regulations have until the close of business on November 1st. 

Written comments can be emailed to [email protected].
OPINION:
Officials’ Actions on Facemask Mandate Regs Shows Lack of Faith in Citizens

By State Rep. Rich Collins
The Carney administration, the Delaware Department of Education (DOE), and the Department of Health and Social Services (DHSS) have shot themselves in the foot again, this time over facemask mandates.
 
The DOE is proposing three permanent regulatory changes that would allow them to continue to impose the facemask requirements in Delaware schools and child care facilities indefinitely.  The proposed rules appear in the current (October) issue of the Delaware Register of Regulations as: 815 (regarding public and private schools), and 933 & 934 (regarding childcare facilities).
 
These rules are already in place as emergency regulations, which have a limited lifespan, but could be kept in place until around Valentine’s Day. The three previously cited proposed regulations would replace the emergency regulations when they expire, should the administration wish to continue this aspect of its COVID-19 mitigation strategy beyond this point.
 
In an clarification email sent to all state legislators earlier today, the governor’s office maintained that since “the rule-making process takes several months” to complete, they had to act now “in order to preserve all options once the emergency regulations expire in February.”
 
That is not entirely true. The administration could have simply promulgated a second set of emergency regulations, immediately taking the place of the expiring first set. This would have also given them the option of allowing the facemask mandate to sunset, if conditions in February were to their liking.
 
What conditions the administration would find acceptable to rescind the mask mandate, no one knows. Neither the governor nor the DOE or DHSS have ever shared what metrics they would consider, and what thresholds would need to be met, in order to allow our kids, teachers, and school visitors to remove their face coverings.
 
The governor, the Department of Education, and the Department of Health and Social Services, did not apparently reach out to anyone regarding their plans to promulgate permanent COVID-19 facemask regulations. Legislators have received numerous phone calls and emails from school board members, parents, teachers, and school administrators that were unaware of the pending move. Instead of informing these stakeholders in advance and stating their intentions, the DOE and other members of the executive branch kept quiet, allowing some citizens to accidentally discover the proposals in the little-read Register of Regulations and spread the news.
 
Today’s clarification from the governor’s office stated: “The governor and his team have not made any decision to extend the mask requirement beyond February. It's also important to note that the administration can repeal a rule at any time. So as soon as conditions allow, the requirement will be lifted.”
 
This is true. A regulation can be rescinded on an emergency basis, before being permanently repealed using a more deliberate protocol. However, this statement from the administration misses the point.
 
The administration’s latest actions are yet another example of what we have seen throughout Delaware’s response to the pandemic. It is top-down decision making that shows a lack of respect for the citizens impacted by the policies being imposed on them, and a lack of trust in local officials to make decisions on behalf of the people they represent.
 
In my opinion, the emergency regulations should have been allowed to expire in February (if not rescinded earlier). Then, local school boards, parents, and school officials should have been empowered to evaluate conditions and collectively determine their next course of action. 
 
Perhaps the DOE, the DHSS, and the governor were just -- as they have indicated -- trying to cover their bases and keep their options open. However, the ham-handed manner in which they have handled this has led to adding even more mistrust and suspicion to a situation that was already charged with an abundance of both. The executive branch could have finally, belatedly, shown some trust in its citizens instead of again forcing its edicts on them without their input, knowledge or consent.
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Citizens wishing to offer an opinion on the proposed regulations have until the close of business on November 1st. 

Written comments can be emailed to [email protected].
Final House of Representatives'
Redistricting Maps Posted Online
The House of Representatives' majority lawmakers have posted the final new district maps that will be in effect for 10 years starting Election Day 2022.

To ensure all Americans receive equal representation, the law requires each state in the nation to redraw its legislative districts following the decennial U.S. Census. Under this reapportionment process, all 62 legislative districts in the Delaware General Assembly are reassessed, with the borders of most subject to changes to account for population shifts. The goal is to equalize the population, within a range of plus or minus 5%, for each representative district and each senatorial district.

To explore the final maps for the 41 state representative district, click here or on the image above.

The 151st General Assembly will meet on Monday to consider the new maps, which will be combined into a single piece of legislation. If passed by a simple majority vote in both chambers, the measure will go to Gov. John Carney for his signature.

The new district borders will not go into effect until Election Day 2022 (November 8). Candidates running for a House or Senate seat next year will need to have at least one year of residency within the new district.