text: ^ Pni/tvj^//^^//^^"^ The ^ORTH CAROLINA REGISTER IN THIS ISSUE A m CONa TlTUl iic/ir TlOWl II tj RECEIVED APR 22 1992 LAW LIBRARY IN ADDITION Final Decision Letter NPDES Permits Notices PROPOSED RULES Environment, Health, and Natural Resources Human Resources Insurance Transportation RRC OBJECTIONS RULES INVALIDATED BY JUDICIAL DECISION CONTESTED CASE DECISIONS ISSUE DATE: APRIL 15, 1992 Volume 7 • Issue 2 • Pages 106-173 INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODF. NORTH CAROLINA REGISTER The North Carolina Register is published twice a month and contains information relating to agency, executive, legislative and judicial actions required by or affecting Chapter 150B of the General Statutes. All proposed administrative rules and notices of public hearings filed under G.S. 150B-21.2 must be published in the Register. The Register will typically comprise approximately fifty pages per issue of legal text. State law requires that a copy of each issue be provided free of charge to each county in the state and to various state officials and institutions. The North Carolina Register is available by yearly subscription at a cost of one hundred and five dollars (S105.00) for 24 issues. Individual issues may be purchased for eight dollars (S8.00). Requests for subscription to the North Carolina Register should be directed to the Office of Administrative Hearings, P. 0. Drawer 27447, Raleigh, N. C. 276 11 -7447. ADOPTION AMENDMENT, AND REPEAL OF RULES The following is a generalized statement of the procedures to be followed for an agency to adopt, amend, or repeal a rule. For the specific statutory' authority, please consult Article 2A of Chapter 150B of the General Statutes. Any agency intending to adopt, amend, or repeal a rule must first publish notice of the proposed action in the North Carolina Register. The notice must include the time and place of the public hearing (or instructions on how a member of the public may request a hearing); a statement of procedure for public comments; the text of the proposed rule or the statement of subject matter; the reason for the proposed action; a reference to the statutory authority for the action and the proposed effective date. Unless a specific statute provides otherwise, at least 15 days must elapse following publication of the notice in the North Carolina Register before the agency may conduct the public hearing and at least 30 days must elapse before the agency can take action on the proposed rule. An agency may not adopt a rule that differs substantially from the proposed form published as part of the public notice, until the adopted version has been published in the North Carolina Register for an additional 30 day comment period. When final action is taken, the promulgating agency must file the rule with the Rules Review Commission (RRC). After approval by RRC. the adopted rule is filed with the Office of Administrative Hearings (OAH). A rule or amended rule generally becomes effective 5 business days after the rule is filed with the Office of Administrative Hearings for publication in the North Carolina Administrative Code (NCAC). Proposed action on rules may be withdrawn by the promulgating agency at any time before final action is taken by the agency or before filing with OAH for publication in the NCAC. TEMPORARY RULES Under certain emergency conditions, agencies may issue temporary rules. Within 24 hours of submission to OAH, the Codifier of Rules must review the agency's written statement of findings of need for the temporary rule pursuant to the provisions in G.S. 150B-21.1. If the Codifier determines that the findings meet the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If the Codifier determines that the findings do not meet the criteria, the rule is returned to the agency. The agency may supplement its findings and resubmit the temporary rule for an additional review or the agency may respond that it will remain with its initial position. The Codifier, thereafter, will enter the rule into the NCAC. A temporary rule becomes effective either when the Codifier of Rules enters the rule in the Code or on the sixth business day after the agency resubmits the rule without change. The temporary rule is in effect for the period specified in the rule or 180 days, whichever is less. An agency adopting a temporary rule must begin rule-making procedures on the permanent rule at the same time the temporary rule is filed with the Codifier. NORTH CAROLINA ADMINISTRATIVE CODE The North Carolina Administrative Code (NCAC) is a compilation and index of the administrative rules of 25 state agencies and 38 occupational licensing boards. The NCAC comprises approximately 15,000 letter size, single spaced pages of material of which approximately 35% of is changed annually. Compilation and publication of the NCAC is mandated by G.S. 150B-21.18. The Code is divided into Titles and Chapters. Each state agency is assigned a separate title which is further broken down by chapters. Title 21 is designated for occupational licensing boards. The NCAC is available in two formats. (1) Single pages may be obtained at a minimum cost of two dollars and 50 cents (S2.50) for 10 pages or less, plus fifteen cents (SO. 15) per each additional page. (2) The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly with replacement pages. A one year subscription to the full publication including supplements can be purchased for seven hundred and fifty dollars (5750.00). Individual volumes may also be purchased with supplement service. Renewal subscriptions for supplements to the initial publication are available. Requests for pages of rules or volumes of the NCAC should be directed to the Office of Administrative Hearings. CITATION TO THE NORTH CAROLINA REGISTER The North Carolina Register is cited by volume, issue, page number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volume 1, Issue 1, pages 101 through 201 of the North Carolina Register issued on April 1, 1986. FOR INFORMATION CONTACT: Office of Administrative Hearings, ATTN: Rules Division, P.O. Drawer 27447, Raleigh, North Carolina 27611-7447. (919) 733-2678. NORTH CAROLINA REGISTER ISSUE CONTENTS Office of Administrative Hearings P. O. Drawer 27447 Raleigh, NC 27611-7447 (919) 733-2678 Julian Mann III, Director James R. Scarcella Sr., Deputy Director MoUy Masich, Director APA Services I. IN ADDITION Final Decision Letter 106 NPDES Permits Notices 107 II. PROPOSED RULES Environment, Health, and Natural Resources Health: Epidemiology 140 Radiation Protection 136 Wildlife Resources Commission 133 Human Resources Aging, Division of 121 Day Care Rules 123 Facility Services 11 1 Mental Health, Developmental Disabilities and Substance Abuse Services 1 1 1 Insurance Consumer Services Division 125 Hearings Division 124 Seniors' Health Insurance Information Program 132 Transportation Motor Vehicles, Division of 142 III. RRC OBJECTIONS 145 rV'. RULES rW ALIDATED BY JUDICIAL DECISION 148 Staff: Ruby Creech, Publications Coordinator Teresa Kilpatrick, Editorial Assistant Jean Shirley, Editorial Assistant \. CONTESTED CASE DECISIONS Index to AIJ Decisions 149 Text of Selected Decisions 158 VL CUMULATLV E PsDEX 172 NORTH CAROLINA REGISTER Publication Schedule (January 1992 - December 1992) Issue Last Day Last Day Earliest Earliest Last Day + Date for for Date for Date for to Earliest Filing Electronic Public Adoption Submit Effective Filing Hearing by Agency to RRC Date +*++++++ **++*++++++++++++**+++++*+++++*++++*+*+++++++++++++*****+++ 01/02/92 12/09/91 12/16 91 01 17,92 02/01/92 02/20/92 04/01/92 01/15/92 12/20/91 12/31,91 01/30,92 02/14/92 02/20/92 04/01/92 02/03/92 01/10/92 01/17,92 02/18/92 03/04/92 03/20/92 05/01/92 02/14/92 01/24/92 01/31/92 02/29/92 03/15/92 03/20/92 05/01/92 03/02/92 02/10/92 02/17/92 03/17/92 04/01/92 04/20/92 06/01/92 03 16/92 02/24/92 03/02,92 03 '3 1/92 04/15/92 04/20/92 06/01/92 04,01/92 03/11/92 03/18,92 04 16/92 05/01/92 05/20/92 07/01/92 04/15/92 03/25/92 04/01 92 04 30/92 05/15/92 05/20/92 07/01/92 05/01/92 04/10/92 04' 17,92 05 16/92 05/31/92 06,20/92 08/03/92 05/15/92 04/24/92 05/01,92 05 30/92 06/14/92 06/20/92 08'03/92 06/01/92 05/11/92 05/18 92 06/16/92 07/01,92 07/20/92 09/01/92 06' 15/92 05/22/92 06,; 01, 92 06'30/92 07/15/92 07/20/92 09/01/92 07/01/92 06/10/92 06 17,92 07 16 92 07/31/92 08/20/92 10/01/92 07/ 1 5 '92 06/24/92 07,01/92 0730-92 08/14/92 08/20/92 10/01/92 08/03/92 07/13/92 07/20 92 08 18/92 09/02/92 09/20/92 11/02/92 08/14/92 07/24/92 07/31,92 08 29/92 09/13 92 09/20/92 11/02/92 09/01 '92 08/11/92 08 18,92 09 16/92 10,01 92 10/20/92 12/01/92 09/15/92 08/25/92 09 0L92 09 30/92 10/15/92 10/20/92 12'01/92 10/01/92 09/10/92 09,17 92 10 16/92 10/31/92 11/20/92 01/04/93 10/15/92 09/24/92 10/0192 103092 11/14/92 11/20/92 01/04/93 11/02/92 10/12/92 10/19 92 11 17,92 12/02/92 12/20/92 02/01/93 11/16/92 10/23/92 10/30 92 12 01/92 12/16/92 12/20/92 02/01/93 12/01/92 11/06/92 11/13 92 12 16,92 12/31/92 01/20/93 03/01/93 12/15/92 11/24/92 12,01,92 12/30/92 01/14,93 01/20/93 03/01/93 * The "Earliest Effective Dale" is computed assuming that the agency follows the publication schedule above, that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and that RRC delivers the rule to the Codifier of Rules five (5 1 business days before the 1st business day of the next calendar month. IN ADDITION [G.S. 1 20-30. 9H, effecth-e July 16, 1986. requires that ail letters and other documents issued by the A ttorney General of the United States in which a final decision is made concerning a "change af- fecting voting" under Section 5 of the Voting Rights Act of 1965 be published in the Xorlh Carolina Register. / U.S. Department of Justice Civil Rights Division JRD:MAP:NT:lrj DJ 166-012-3 Voting Section 92-0356 P.O. Box 66128 Washington, D.C. 20035-6128 .March 24, 1992 Kenneth R. Hoyle, Sr., Esq. Lee County Attorney P. O. Box 1968 Sanford, North Carolina 27331-1968 Dear Mr. Hoyle: This refers to the realignment of voting precincts, the establishment of an additional precinct and polling place in Lee County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on January 28, 1992. The Attomey General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attomey General to object does not bar subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis- tration of Section 5 (28C.F.R. 51.41). Sincerely, John R. Dunne Assistant Attomey General Civil Rights Division By: Gerald W. Jones Chief, Votina Section 7:2 NORTH CAROLINA REGISTER April 15, 1992 106 IN ADDITION 1 his Seciion contains public notices that are required to be published in the Register or haxe been approved by the Codifier of Rules for publication. STATE OK NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION POST OKI ICE BOX 29535 RALEIGH, NORTH CAROLINA 27626-0535 PUBLIC NOTICE OF INTENT TO ISSLE STATE GENERAL NPDES PERMITS Public notice of intent to issue State National Pollutant Discharge Elimination System (NPDES) General Permits for Point Source Discharges associated with the following activities: 1. NPDES General Permit No. NCG500000 for the point source discharge of non-contact cooling waters, cooling tower blowdown water, cooling system condensate, boiler water blowdown water, and other similar discharges. 2. NPDES General Permit No. NCG510000 for the point source discharge of treated groundwaters associated with the remediation of petroleum contammated groundwaters and other similar dis- charges. 3. NPDES General Permit No. NCG520000 for the point source discharge of wastewater associated with sand dredging operations and other similar discharges. 4. NPDES General Permit No. NCG530000 for the point source discharge of wastewaters associated with the rinsing and packing of seafood and fresh water fish; and discharges from fish farms and other similar discharges. 5. NPDES General Permit No. NCG5400()rj for the point source discharge of domestic wastewater associated with smgle family residences and other similar discharges. 6. NPDES General Permit No. NCG550000 for the point sources discharge of wastewaters associated with the treatment of surface and groundwaters for either human consumption, industrial process or agricultural needs and other similar discharges. On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General Statutes of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North Carolina Environmental Management Commission proposes to issue State NPDES General Permits for the discharges as described above. INEOR.M.ATION: Copies of the draft NPDES General Pemiits and Fact Sheets concerning the draft Permits are a\ailable by writing or caUing: Mr. Donald Safrit, P,E.. Supervisor Permits and Engineermg L nit Water Quality Section N.C. Division of En\ ironmcntal Management P.O. Box 29535 Raleigh, North Carolina 27626-0535 Telephone (^19) 733-5083 Persons wishing to comment upon or object to the proposed detenninations are in\'ited to submit their comments in writing to the above address no later than May 31, 1992. .-Vll comments rccei\'ed prior 107 7:2 NORTH CAROLINA REGISTER April 15, 1992 IN ADDITION to that date will be considered in the final determination regarding permit issuance. A pubhc meeting may be held where the Director of the Division of Environmental Management fmds a significant de- gree of pubhc interest in any proposed permit issuance. The draft Permits, Fact Sheets and other information are on file at the Division of Environmental Management, 512 N. Salisbury Street, Room 925-A, Archdale Building, Raleigh, North Carolina. They may be inspected during normal office hours. Copies of the information on fde are available upon request and payment of the costs of reproduction. AH such comments and requests regarding these matters should make reference to the draft Permit Numbers: NCG500000 NCG5 10000 NCG520000 NCG530000 NCG540000 NCG550000 Cooling Water Systems Groundwater Remediation Systems Sand Dredging Operations Seafood Packing and Rinsing Operations Single Family Residences Water Treatment Systems Date: March 23, 1992 George T. Everett, Director Division of Environmental Management 7:2 NORTH CAROLINA REGISTER April 15, 1992 108 IN ADDITION STATE OF NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION POST OFFICE BOX 29535 RALEIGH, NORTH CAROLINA 27626-0535 PLBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL NPDES PERMITS Public notice of intent to issue State National Pollutant Discharge Elimination System (NPDES) General Permits for Point Source Discharges of Stormwater associated with the following activities: 1. NPDES General Permit No. NCG080000 for the point source discharges of stormwater runoff from vehicle maintenance areas, including vehicle rehabilitation, mechanical repairs, painting, fueling, lubri- cation and equipment cleaning operations areas, associated with industrial activities classified as Local and Suburban Iransit and Interurban Highway Passenger Transportation (Standard Industrial Classi- fication Code (SIC 41)), Motor Freight Transportation and Warehousing (SIC 42) (except Pubhc Warehousing and Storage (SIC 4221-4225)), Postal Service (SIC 43), and Petroleum Bulk Stations and Terminals (SIC 5191) with total petroleum site storage capacity of less than 1 miUion gallons, except as specified below. ,AJso included in this permit are stormwater discharges from oU water separators associated with petroleum storage facilities with less than 1 million gallons total petroleum site storage capacity and associated with vehicle maintenance operations at activities which are otherwise designated on a case-by-case basis as being required to be permitted, except as excluded below. Exclusions from Coveraae: a. Vehicle maintenance areas associated with industrial activities classified as Railroad Transportation (SIC 40), Water Transportation (SIC 44), and Transportation by .Air (SIC 45), and stormwater discharges from oil water separators associated with Petroleum Bulk Stations and Terminals (SIC 5191) with a total petroleum site storage capacity of greater than or equal to I million gallons. b. Discharges of wash water from steam cleaning operations or other equipment cleaning operations. 2. NPDES General Permit No. NCG130000 for the point source discharges of stormwater runoff as- sociated with industrial activities classified as estabUshments primarily engaged in the wholesale trade of non-metal waste and scrap (hereafter referred to as the non-metal waste recycUng industry) a portion of SIC 5093. This General Permit is appbcable to stormwater discharges from areas at the facilities described above which are directly related to the industrial activities. .\lso included in this General Permit are stormwater discharges from areas at the facilities described above which are used for vehicle maintenance activities. The following activities shall not have coverage under this General Permit: estabhshment primarily engaged m the wholesale trade of metal waste and scrap, iron and steel scrap, and nonferrous metal scrap, and establishment primarily engaged in automobile wrecking for scrap. On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General Statutes of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North Carolina Environmental Management Commission projxjses to issue State NPDES General Permits for the discharges as described above. INFORMATION: Copies of the draft NPDES General Permits and Fact Sheets concerning the draft Permits are available by writing or calling: Ms. Coleen Sullins, Supervisor Stormwater Group Water Quahty Planning N.C. Division of Environmental Management P.O. Box 29535 Raleigh, North CaroUna 27626-0535 Telephone (919) 733-5083 109 7:2 NORTH CAROLINA REGISTER April 15, 1992 IN ADDITION Persons wishing to comment upon or object to the proposed determinations are invited to submit their comments in writing to the above address no later than May 15, 1992. All comments received prior to that date will be considered in the final determination regarding permit issuance. A pubhc meeting may be held where the Director of the Division of Environmental iVIanagement fmds a significant de- gree of public interest in any proposed permit issuance. The draft Permits, Fact Sheets and other information are on file at the Division of Environmental Management, 512 N. Salisbury Street, Room 625-C, Archdale Building, Raleigh, North Carolina. They may be inspected during normal office hours. Copies of the information on file are available upon request and payment of the costs of reproduction. All such comments and requests regarding these matters should make reference to the draft Permit Numbers NCG080000, or NCG 130000. Date: March 25, 1992 George T. Everett, Director Division of Environmental Management 7:2 NORTH CAROLINA REGISTER April 15, 1992 110 PROPOSED RULES TITLE 10 DEPARTMENT OF HUMAN RESOURCES 1\ otice is hereby given in accordance with G.S. I50B-2I.2 that the Medical Care Commission (Division of Facility Sen'icesI intends to amend rules cited as 10 SCAC 3H .0W5 and .0709. 1 he proposed effective date of this action is Au- gust I, 1992. 1 he public hearing will be conducted at 9:30 a.m. on June 12, 1992 at the Council Building, Room 201, 701 Barbour Drive, Raleigh, i\C 27603. JXeason for Proposed Action: To bring time in- terval of physician s visits in line with federal reg- ulations and make those visits the same inten-al as the renewal of orders. Co omment Procedures: Written comments should be submitted to Jackie Sheppard, 701 Barbour Drive, Raleigh, \orth Carolina 27603 by June 11. 1992. Oral comments may be given at the hearing. CHAPTER 3 - FACILITY SERVICES SUBCHAPTER 3H - RLEES FOR THE LICENSING OF NURSING HOMES SECTION .0700 - PHYSICIAN SERVICES .0705 POLICIES AND PROCEDURES (a) Each licensed facility shall have p>olicies and procedures which are Implemented to assure that the medical or health care of each patient or res- ident is under the contmuing supervision of a physician. Physician services shall include at least those physician services required in Section .0300 of this Subchapter. (b) Medical orders for all medications and treatments administered to any patient or resi- dent shall be signed and dated by the attending physician. .VU mjdical current orders shall be ro' i iuv . od reneued. signed and dated by the phy- sician at least e\cr\' Ml davs. quartorly. AH- modical ordoro fof controUL ' d C i ub ' j . tanco ' j ohoU h« rL" i iowod at- Wst- monthly with the phyoician. Such roi i iov . ' msv W doni.' l*y tijk ' phono. AH fe- ^ l iL^w i a L . hi-dl t=>^ di'L-umL ' ntod »h4 dcitod m Ae mL ' dical njcord. (c) A physician's oral orders (including tele- phone orders) shall be given only to a licensed nurse except orders for therapeutic diets which shall be given either to a qualified dietitian or h- censed nurse. The record of each telephone or- der shall include the name of physician giving the order, date and time of order, content of order and name of person receiving the order. The physician who gives oral orders shall sign the or- ders within five days and/or in accordance with the facility's written pohcies. (d) Standing orders shall be identified for each patient and signed by the physician. (e) All discharge orders and instructions shall be signed by a physician. Statutory .Authority G.S. 13IE-104. .0709 DOCU\1ENT.\TION Phyjiiciano ohall maintain appropiiato clinical ©f this Subchaptor, including documontation e4^ a physician ¥i4t- te the pationt by progrooo notos ' . ' i ritton at- least- e' le ry 90 days aft4 a discharge summary which includoo the patient's ©f Fesj- dont s prognosis, fmal diagnosis &f causo ef death. (a) The physician's shall visit everv' 60 days in the nursing facility. (b) E\eA' physician's visit shall be documented with an entr\' in the physician's notes which is descriptive of the resident's condition and re- sponse to treatment. (c) Ph\sicians shall complete discharge sum- manes as required bv Rule .1)609 of this Sub- chapter. .Authority G.S. I31E-104; 42 l.S.C. 1396 r (a). ****************** is otice is hereby gi\'en in accordance with G.S. 150B-2I.2 that the Commission for Mental Health. Developmental Disabilities and Substance Abuse Services intends to amend rules cited as 10 XCAC 14K .0103, .0210. .0315 and 14M .0410. I he proposed effective date of this action is Au- gust I, 1992. 1 he public hearing will be conducted at 1:00 p.m. on .May 28, 1992 at the Sheraton Inn Raleigh. President's Room, 4501 Creedmoor Road at Crabtree Valley .Mall, Raleigh, .\'C. IXeasons for Proposed Actions: All rules in 14K are core licensure rules that apply to mental health, developmental disabilities and substance abuse services. Ill 7:2 NORTH CAROLINA REGISTER .4pnl 15, 1992 PROPOSED RULES 10 NCAC I4K .0103 - DEFINITIONS. Definition No. (34) "Early Inlen-ention Sen-ices" is pro- posed for amendment to add more specificity to the definition regarding transportation for infant /toddler early intervention services. In 1986 the Dhision adopted by reference the federal definition for this sen-ice. It is felt to be somewhat vague and open ended. With the addi- tion of transportation senices to the listing of re- quired early intervention services, effective Sj 1 192, a deCinition more relevant to Stale needs and available resources is appropriate. The proposed revision meets the federal requirements and will allow for more accurate fiscal planning at the State and local levels. Other proposed changes in this Rule are for con- sistency and new requirements for A PA filing. 10 NCAC 14K .0210 - LICENSE RENEWAL. Pro- posed amendment due to absence of statutory au- thority to require sanitation inspections except in facilities which provide room or board. Subse- quentfy, area programs will not be subjected to such inspections and local sanitarians will not be called to provide such. 10 NCAC 14K .0315 - TREATMENT/ HABILI- TATION PLANNING AND DOCUMENTATION. Proposed for amendment for the inclusion of lan- guage which documents that the client participated in the development of the individual treatment I habilitation plan. This language was inadvertently deleted in a previous revision to the Rule. This rule applies only to group homes for children with mental retardation or other developmental disabilities. 10 NCAC 14M .0410 - PARTICIPATION OF THE FAMILY OR LEGALLY RESPONSIBLE PERSON. Proposed for amendment to allow reports to the parent or legally responsible person to be in writ- ing or take the form of a conference. The reports shall focus on the child's progress toward meeting individual goals. This revision will also make the rule consistent with specialized community resi- dential centers for individuals with mental retar- dation or other developmental disabilities. \^ omment Procedures: Any interested person may present his comments by oral presentation or by submitting a written statement. Persons wish- ing to make oral presentations should contact Charlotte Tucker. Di\-ision of Mental Health, De- velopmental Disabilities and Substance Abuse Services. 325 North Salisbury Street. Raleigh, N.C. 27603, (919 J 733-4774 before May 16. 1992. Comments submitted as a written statement must be sent to the above address by May 16 and must state the rules to which the comments are ad- dressed. Time limits for oral remarks may be imposed by the Commission Chairman, Fiscal in- formation on these rules is also available from the same address. CHAPTER 14 - MENTAL HEALTH: GENERAL SUBCHAPTER 14K - CORE LICENSURE RULES FOR MENTAL HEALTH: MENTAL RETARDATION AND OTHER DE\ ELOPMENTAL DISABILITIES: AND SUBSTANCE ABUSE FACILITIES SECTION .0100 - GENERAL INFORMATION .0103 DEFINITIONS (a) This Rule contains the definitions that ap- ply to all the rules in this Subchapter and Sub- chapters 14L through 140 of this Chapter. (b) In addition to the definitions contained in this Rule, the terms defined in G.S. 122C-3 also apply to all the rules in this Subchapter and Subchapters 14L through 140 of this Chapter. (c) The following terms shall have the meanings specified: (1) "Administering medication" means direct apphcation of a drug to the body of a cli- ent by injection, inhalation, ingestion, or any other means. (2) "Adolescent" means a minor from 13 through 17 years of age. (3) "Adult" means a person 18 years of age or older or a person under 1 8 years of age who has been married or who has been emancipated by a court of competent ju- risdiction or is a member of the armed forces. (4) "Aftercare" means those services provided to substance abuse cUents after discharge from a service which facihtates the chent's integration or reintegration into society. Activities may include self-help groups, supportive work programs and staff follow-up contacts and Lnter\entions. (5) "Alcohol abuse" means psychoactive substance abuse which is a residual cate- gor>' for noting maladaptive patterns of psychoactive substance use that have never met the critena for dependence for that particular class of substance (criteria delineated in DSM-III-R pubhshed by the American Psychiatric Association, 1400 K Street, N.W., Washington, D.C. 20005 at a cost of twenty-nine dollars and ninety-five cents ($29.95) for the soft co\er edition and tliirtN-ninc dollars and ninety-five cents ($39.95) for the hard co\er edition.) This adoption by refer- ence » ift accordancQ w'ith GtSt 7:2 NORTH CAROLINA REGISTER Apiil 15, 1992 112 PROPOSED RULES 150n M(o). includes subsequent amend- ments and editions of the referenced ma- tenai. (6) ■"/VIcohol dependence" means psychoactive substance dependence which is a cluster of cognitive behavioral, and physiologic symptoms that indicate that a person has impaired control of psychoactive substance use and continues use of the substance despite adverse con- sequences (cnteria delineated in DSM-III-R published by the American Psychiatric Association, 1400 K Street, N.'W., Washington, D.C. 20005 at a cost of twenty-nine dollars and ninety-five cents ($29.95) for the soft cover edition and thirty-nine dollars and ninety-fi\'e cents ($39.95) for the hard cover edition.) This adoption by reference k m accord ancij with G.S. IJOB l ' l(c). includes sub- sequent amendments and editions of the referenced matenal. (7) ".AppLicant" means any person who in- tends to establish, maintain or operate a licensable facility and who applies to the Department for a license to 0f>erate a fa- cility under the provisions of G.S. 122C, Article 2. (8) ■■Appro\'ed supported employment con- version plan" means a planned approach to changing the type of services deLi\ered from ADAP facility-based to supported employment. Approval of the conversion plan is the responsibility of the Regional Director of the Division and the /Vrea Di- rector or his designee if the facility is op- erated by a contract agency of the area program or other service provider. The Di\ision shall request appropriate per- sonnel from the Division of Vocational Rehabilitation to participate in the review process. The request for approval of the supported employment conversion plan shall include specific wntten information in the foUowing areas: (A) number of clients to be moved into supported employment placements; (B) types of supported employment models to be used: (C) timeframe for the conversion period; (D) interim proposed facility stalTmg pat- terns and responsibilities: and (E) proposed budget for conversion plan. (9) ''Area program" means a legally consti- tuted public agency pro\iding mental health, mental retardation and substance abuse services for a catchment area desig- nated by the Commission. For purposes of these Rules, the term "area program" means the same as "area authority" as defmed in G.S. 122C-3. ( 10) "Assessment" means a procedure for de- termining the nature and extent of the problem for which the individual is seek- ing service. (11) "Atypical development" in children means those from birth to 60 months of age who demonstrate significantly atypical behavioral socioemotional, motor, or sensory development as manifested by: (A) Diagnosed hyperactivity, attention def- icit disorder or other behavioral disorders, or (B) Identified emotional or beha\ioral dis- orders such as: (i) delay or abnormality in achieving ex- pected emotional milestones, such as pleasurable interest In adults and peers; ability to communicate emotional needs; and ability to tolerate frus- trations. (ii) persistent failure to initiate or respond to most social interactions. (iii) fearfulness or other distress that does not respond to comforting by caregivers. (iv) indiscriminate sociability, e.g. exces- sive familiarity with relative strangers. (v) self-injurious or unusually aggressive behavior, or (C) Substantiated physical abuse, sexual abuse, or other environmental situations that raise significant concern regarding the child's emotional well-being. (12) "Certified counselor" means an alcoholism, drug abuse or substance abuse counselor who is certified by the North Carohna Substance Abuse Professional Certification Board. (13) "Child" means a minor from birth through 12 years of age. (14) "Chronically mentally ill adult" means an individual 18 years of age or older who, as a result of a mental disorder, exhibits emotional or beha\ioral functioning which is so impaired as to interfere sub- stantially with his capacity to remain in the community without supportive treat- ment or senices of a long-term or indefi- nite duration. In these persons, mental disability is se\ere and persistent, resulting in long-term limitation of their functional capacities for primary activities of daily living such as interpersonal relations, homemaking, self-care, employment and recreation. 113 7:2 NORTH CAROLINA REGISTER April 15, 1992 IM PROPOSED RULES (15) "Client record" means a written account of all services provided a client from the time of admission of the client by the fa- cility until discharge from the facility. (16) "Clinical" means having to do with the active direct treatment/habilitation of a client. (17) "CLLnical staff member" means a profes- sional who provides active direct treatment/habilitation to a client. (18) "Clinical/professional supervision" means regularly scheduled assistance by a qualified mental health professional, a qualified substance abuse professional or a qualified developmental disabilities pro- fessional to a staff member who is pro- viding direct, therapeutic intervention to a chent or chents. Ihe purpose of chnical supervision is to ensure that each client receives appropriate treatment or habili- tation which is consistent with accepted standards of practice and the needs of the client. (19) "Contested case" means an administra- tive proceeding under G.S. 150B, Article 3, in which the rights, privileges, or duties of a party are required by law to be de- termined. (20) "Contract agency" means a legally con- stituted entity with which the area pro- gram contracts for a service exclusive of intermittent purchase of service for an in- dividually identified client. (21) "Day /night service" means a service provided on a regular basis, in a structured environment that is offered to the same individual for a period of three or more hours within a 24-hour period. (22) "Declaratory ruling" means a formal and binding interpretation as to: (A) the \alidity of a rule; or (B) the applicability to a given state of facts of a statute administered by the Depart- ment of Human Resources, or a rule or order of the Department of Human Re- sources. (23) "Detoxification" means the physical withdrawal of an individual from alcohol or other drugs in order that the individual can participate in rehabilitation activities. (24) "Developmentally delayed children" means those whose development is de- layed in one or more of the following areas: cognitive development; physical de- velopment, including vision and he;iring; language and speech; psychosocial and self-help skills. Ihe specific level of delay must be: (A) for children from birth to 36 months of age, documented by scores 1 Vi stand- ard deviations below the mean on stand- ardized tests in at least one of the above areas of development. Or, it may be documented by a 20 percent delay on as- sessment instruments that yield scores in months; and (B) for children from 36 to 60 months of age, documented by test performance two standardized deviations below the mean on standardized tests in one area of de- velopment or by performance that is one standard deviation below the norm in two areas of development. Or, it may be documented by a 25 percent delay in two areas on assessment instruments that yield scores in months. (25) "DFS" means the Division of Facility Services, 701 Barbour Drive. Raleigh, N.C. 27603. (26) "Direct care staff means an individual who provides active direct care, treatment, or rehabifitation or habihtation services to chents. (27) "Dispensing medication" means prepar- ing and packaging a prescription drug or device in a container and labeling the container with information required by state and federal law. Filling or refilling drug containers with prescription drugs for subsequent use by a client is "dis- pensing". Providing quantities of unit dose prescription drugs for 5ubsec]uent administration is "dispensing". (28) "DVIH/DD SAS ' means the Division of Mental Health, Developmental Disa- bilities, and Substance Abuse Services, 325 N. Safisbury Street, Raleigh, N.C. 27603. (29) "Documentation" means provision of written, dated and authenticated evidence of the dehvery of client services or com- pliance with statutes or rules, e.g., entries in the client record, policies and proce- dures, minutes of meetings, memoranda, reports, schedules, notices and announce- ments. (30) "Drug abuse" means psychoactive sub- stance abuse which is a residu;d category for noting maladaptive patterns of psychoacti\e substance use that have never met the criteria for dependence for that particular class of substance (criteria delineated in DSM-HI-R published by the American Psychiatric Association, 1400 K Street, N.W., Washington, D.C. 20005 at a cost of twcntv-nine dollars and 7:2 NORTH CAROLINA REGISTER April 15, 1992 114 PROPOSED RULES ninety-five cents ($29.95) for the soft cover edition and thirty-nine dollars and ninety-five cents ($39.95) for the hard cover edition.) This adoption by refer- ence i* H* acoordanoo w+tfe G.S. 15(HJ 1 1(c). includes subsequent amend- ments and editions ot^ the referenced ma- tenai. (31 J "Drug dependence" means psychoactive substance dependence which is a cluster of cognitive behavioral, and physiologic s\mptoms that indicate that a person has impaired control of psychoactive sub- stance use and continues use of the sub- stance despite adverse consequences (criteria delineated in DSM-III-R pub- hshed by the rVmerican Psvchiatric Asso- ciation, ' 1400 K Street, N.W., Washington, D.C. 20005 at a cost of twenty-nine doUars and ninety-five cents ($29.95) for the soft cover edition and thirty-nine doUars and ninety-five cents ($39.95) for the hard cover edition.) This adoption by reference i* m accordanc e wrtb Gt^ 15QB M(c). includes subse- quent amendments and editions of the referenced matenal. (32) 'DWl" means dnving while impaired, as defined m G.S. 20-138.1. (33j "DWI substance abuse assessment" means a service provided to persons charged with or con\icted of DWl to de- termine the presence of chemical depend- enc> . The "assessment" involves a face-to-face interview with a substance abuse professional. (34) "Early Inter\ention Ser%ices" means those ser\ices provided for infants and toddlers specified in Section 303.12 of Subpart A of Part 303 of Title 34 of the Code of Federal Regulations. For the purposes of these services, however, transportation means assistance in the tra\el to and from specified earlv inter- \ention services pro\ided bv certified de- \elopmental day centers or other center-based services designed specificaUv for children with or at nsk for disabilities: and speech. ph\sica] or occupationcd therapy if pro\'ided in a speciafaed setting awa\' from the child s residence. Trans- portation assistance ma\" be pro\ided bv staff, existing public or prixate services or bv the famih', who shall be reimbursed for their expenses, m accordance with appli- cable fee provisions. This adoption by reterence » i» uccorduncc' Vi4t4* G.S. 150n 1 1(c). includes subsequent amend- ments and editions of the referenced ma- terial. (35) "Evaluation" means an assessment ser- vice which identifies the nature and extent of an individual's problem through a sys- tematic appraisal for the purposes of di- agnosis and determination of the disability of the individual and the most appropriate plan, if any, for services. (36) "First aid" means emergency treatment for injury or sudden illness before regular medical care is available. First aid in- cludes artificial respiration, the Heirrdich maneuver, or other Red Cross first aid techniques for relieving airway ob- struction, care of wounds and bums, and temporary administering of splints. (37) "Governing body" means, in the case of a corporation, the board of directors; in the case of an area authority, the area board; and in all other cases, the owner of the facdity. (38) "Health Services" means those sen'ices provided for infants and toddlers specified in Section 303.13 of Subpart A of Part 303 of Title 34 of the Code of Federal Regu- lations. This adoption by reference is m accordonco with G S. 15QB M(c). in- cludes subsequent amendments and edi- tions of the referenced matenal. (39) "Hearing" means, unless otherwise spec- ified, a contested case hearing under G.S. 150B, Article 3. (40) "High risk children" means those from birth to 36 months of age for whom there is chnical evidence of conditions which have a high probability of resulting in de- velopmental delay or atypical develop- ment and for whom there is clinical evidence that developmental or therapeutic intervention may be necessary. There are two categories of high risk chil- dren. These are: (A) High Risk-Established: Diagnosed or documented physical or mental conditions which are known to result in develop- mental delay or atypical development as the child matures. Such conditions are limited to the following: (i) chromosomal anomaly or genetic dis- orders associated with developmental deficits; (ii) metabolic disorders associated with developmental deficits: (iii) infectious diseases associated with developmental deficits: (iv) neurologic disorders; (v) congenital malformations: 115 :2 NORTH CAROLINA REGISTER April 15, 1992 PROPOSED RULES (vi) sensory disorders; or (vii) toxic exposure. (B) High Risk-Potential: Documented presence of indicators which are associ- ated with patterns of development and which have a high probability of meeting the criteria for developmental delay or atypical development as the child matures. There shall be documentation of at least three of the parental or family, neonatal, or postneonatal risk conditions as defmed in the pubhcation, "NORTH CAROLINA CHILD SERVICE CO- ORDINATION PROGRAM" available from the Division of Maternal and Child Health, Department of Environment, Health, and Natural Resources, P.O. Box 27687, Raleigh, NC 27611-7687. adoptod m acoordanco wrtfe GtSt 150B M(c) This adoption by reference includes subsequent amendments and editions of the refer- enced material. These conditions are as follows: (i) maternal age less than 15 years; (ii) maternal PKU; (iii) mother HIV positive; (iv) maternal use of anticonvulsant, antineoplastic or anticoagulant drugs; (v) parental blindness; (vi) parental substance abuse; (vii) parental mental retardation; (viii) parental mental illness; (ix) difficulty in bonding between parent and infant; (x) difficulty in providing basic parenting; (xi) lack of stable housing; (xii) lack of familial and social support; (xiii) family history of childhood deafness; (xiv) maternal hepatitis B; (xv) birth weight less than 1 500 grams; (xvi) gestational age less than 32 weeks; (xvii) respiratory distress (mechanical ventilator greater than six hours); (xviii) asphyxia; (xix) hypoglycemia (less than 25 mg dl); (xx) hvperbUirubinemia (greater than 20 mg/di); (xxi) intracranial hemorrhage; (xxii) neonatal seizures; (xxiii) major congenital anomalies; (xxiv) CNS infection or trauma; (xxv) congenitally acquired infection; (xxvi) suspected visual impairment; (xxvii) suspected hearing impairment; (.\xviii) no well child care by age six months; (xxix) failure on standard developmental or sensory screening test; (xxx) significant parental concern; and (xxxi) suspected abuse or neglect, who: (41) "Hours of operation" means an indi- cation of the minimum operational hours that a service is expected to be available to cUents, but not prohibiting the typical closing of a service to accommodate holi- days, vacations, staff development activ- ities and weather and facdity-related conditions but taking into consideration the type of service being provided. (42) "ICF/MR" (Intermediate Care Facihty/ Mentally Retarded) means a fa- cility certified as having met federal ICF/MR requirements and which pro- vides 24-hour personal care, habihtation, developmental and supportive services to persons with mental retardation or related conditions. (43) "Incident" means any happening which is not consistent with the routine opera- tion of the facility or the routine care of a client and that is likely to lead to adverse effects upon a chent. (44) "Infant" means an individual from birth through two years of age. (45) "Legend drug" means a drug that cannot be dispensed without a prescription. (46) "License" means a permit to operate a facility which is issued by DFS under G.S. 122C, Article 2. (47) ".Medication" means a substance recog- nized in the official "United States Pharmacopoeia" or "National Formulary" intended for use in the diag- nosis, mitigation, treatment or prevention of disease. (48) "Minor chent" means a person under 18 years of age who has not been married or who has not been emancipated by a de- cree issued by a court of competent juris- diction or is not a member of the armed forces. (49) "Neighborhood" - See "residential setting". (50) "Nurse" means a person hcensed to practice in the State of North Carolina either as a registered nurse or as a licensed practical nurse. (51) "Operator" means the designated agent of the' governing body who is responsible for the management of a Uccnsable facil- (52) "Outpatient" or "Outpatient service" means the same as periodic service. ■2 NORTH CAROLINA REGISTER April 15, 1992 116 PROPOSED RULES (53) "Parent" means the legally responsible person unless otherwise clear from the context. (54) "'Periodic ser\ice" means a service pro- vided through short, recumng visits for persons who are mentally ill, develop- mentally disabled or substance abusers. (55) "Physical examination" means the pro- cedures used by a physician or physician extender on behalf of a physician to de- termine the physiological and anatomical condition of the client. Physical exam- ination also means medical examination. (56) "Physician extender" means a nurse practitioner or a physician assistant ap- proved to perform medical acts by the Board of .Medical Examiners of the State of North Carolina. (57) "Preschool age child" means a child from three through five years of age. (58) "Private facility" means a facility not operated by or under contract with an area program. (59) "Program evaluation" means the sys- tematic documented assessment of pro- gram activity to determine the effectiveness, efficiency and scope of the system under investigation, to defme its strengths and weaknesses and thereby to pro\ide a basis for informed decision- making. (60) "Provider" means an individual, agency or organization that provides mental health, mental retardation or substance abuse sen'ices. (61) "Psychiatric nurse" means an individual who is licensed to practice as a registered nurse in the State of North Carolina by the North Carolina Board of Nursing and who is a graduate of an accredited mas- ter's level program in psychiatric mental health nursing with two years of experi- ence, or has a master's degree in behav- ioral science with two years of supervised clinical experience, or has four years of experience m psychiatric mental health nursing. (62) "Psychiatric social worker" means an in- dividual who holds a master's degree in social work from an accredited school of social work and has two years of clinical social work experience. (63) "Psychiatrist" means an individual who is licensed to practice medicine in the State of North Carolina and who has completed an accredited training program in psychiatr>". (64) "Psychotherapy" means a form of treat- ment of mental illness or emotional dis- orders which is based primarily upon %erbal or non-verbal communication with the patient. Treatment is provided by a tramed professional for the purpose of re- mo\ing or modifying existing symptoms, of attenuating or reversing disturbed pat- terns of behavior, and of promoting posi- tive personality growth and development. (65) "Psychotropic medication" means medication with the primaiy function of treating mental illness or personality or behavior disorders. These medications include, but are not limited to, antipsy- chotics, antidepressants, neuroleptics, lithium and minor tranquilizers. (66) "Qualified alcoholism professional" means an individual who is certified by the North Carolina Substance Abuse Professional Certification Board or who is a graduate of a college or university with a baccalaureate or advanced degree in a human service related field with doc- umentation of at least two years of super- vised experience in the profession of alcohohsm counseling. (67) "Qualified developmental disabilities professional" means an individual holding at least a baccalaureate degree in a disci- pline related to developmental disabilities, and at least two years of super\'ised habilitative experience in working with the mentally retarded or otherwise develop- mentally disabled or holding a baccalaureate degree in a field other than one related to developmental disabilities and ha\ing three years of supervised ex- perience in working with the mentally re- tarded or otherwise de\elopmentally disabled. (68) "Qualified drug abuse professional" means an individual who is certified by the North Carohna Substance Abuse Professional Certification Board or who is a graduate of a coUcge or university with a baccalaureate or advanced degree in a human service related field with doc- umentation of at least two years of super- vised experience in the profession of drug abuse counseling. (69) "Qualified mental health professional" means any one of the following: psychia- trist, psychiatric nurse, practicing psy- chologist, psNcluatric social worker, an individual with at least a master's degree in a related human service field and two years of supervised clinical experience in 117 7:2 NORTH CAROLINA REGISTER April 15, 1992 PROPOSED RULES mental health services or an individual with a baccalaureate degree in a related human service field and four years of supervised clinical experience in mental health services. (70) "Qualified nutritionist" means an indi- vidual who has a Master's degree in nu- trition, nutrition education or public health nutrition and who may or may not be a registered dietitian. (71) "Qualified substance abuse professional" means an individual who is: (A) certified by the North Carolina Sub- stance Abuse Professional Certification Board; or (B) a graduate of a college or university with a baccalaureate or advanced degree in a human service related field with doc- umentation of at least two years of super- vised experience in the profession of alcoholism and drug abuse counseling. (72) "Registered dietitian" means an individ- ual who has successfuUy completed a na- tional examination for the Commission on Dietetic Registration and maintains registration with that commission through approved continuing education activities and events. (73) "Rehabilitation" means training, care and specialized therapies undertaken to assist a chent to reacquire or maximize any or all lost skills or functional abilities. (74) "Research" means inquiry involving a trial or special observation made under conditions determined by the investigator to confirm or disprove a hypothesis, or to. expHcate some principle or effect. The term "research" as used in this document means research which is not standard or conventional; involves a trial or special observation which would place the subject at risk for injur}' (physical, psychological or social injury), or increase the chance of disclosure of treatment; utilizes ele- ments or steps not ordinarily employed by qualified professionals treating similar disorders of this population; or is a type of procedure that ser\'es the purpose of the research only and does not include treatment designed primarily to benefit the individual. (75) "Residential setting" means a living area or zone in which the primary purpose is family residential living and which may be located in an area zoned either urban residential or rural. (76) "Respite discharge" means that point in time when no additional incidents of re- spite senices are anticipated. (77) "Respite episode" means an uninter- rupted period of time during which a ch- ent receives respite services. (78) "Screening" means an assessment service which provides for a brief appraisal of each individual who presents himself for services, in order to determine the nature of the individual's problem and his need for services. Screening may also include referral to other appropriate community resources. (79) "Secretary" means the Secretary of the Department as defined in G.S. 122C-3. (80) "Service" means an activity or interaction intended to benefit another, with, or in behalf of, an individual who is in need of assistance, care, habihtation, intervention, rehabilitation or treatment. (81) "Severely physically disabled person" means for the purpose of ADAP (Adult Developmental Activity Program) a per- son: (A) who has a severe physical disabihty which seriously limits his functional ca- pabiUties (mobihty, communication, self- care, self-direction, work tolerance or work skills); (B) who has one or more physical disabiU- ties resulting from amputation, arthritis, blindness, cancer, cerebral palsy, cystic fibrosis, deafness, heart disease, hemiplegia, hemophiha, respiratory or pulmonary dysfunction, multiple sclerosis, muscular distrophy, musculoskeletal dis- orders, neurological disorders (including stroke and epUepsy), paraplegia, quadriplegia, and other spinal cord condi- tions, sickle cell anemia and end stage renal disease; and (C) whose habilitation or rehabihtation can be expected to require multiple habih- tation or rehabihtation services over an extended period of time. (82) "Sheltered employment" means a facih- ty's provision of work and work training by: (A) subcontracting from industries in the community and bringing work to the fa- cility to be performed; or (B) manufacturing its own products in the facihty. Chents served in a sheltered em- ployment model are those who consist- ently achieve earning levels exceeding one-half of the minimum wage but who 7:2 NORTH CAROLINA REGISTER April 15, 1992 IIS PROPOSED RULES are not ready for independent employ- ment activities. (83) "Staff member" means any individual u ho is employed by the facility. (84) "Substantially mentally retarded person" means for the purpose of ADAP a person \\ho is mentally retarded to the degree of seriously limiting his functional capabili- ties, whose habiUtation or rehabilitation can be expected to extend over a period of time, and includmg; (A) moderately mentally retarded persons; (B) severely mentally retarded persons; (C) profoundly mentally retarded persons; or (D) mentally retarded persons with a handicapping condition so severe as to lack the potential for employment at this time, either in a sheltered or competitive setting. In addition, such individuals must have a deficit in self-help, commu- nication, socialization or occupational skills and be recommended by the voca- tional rehabilitation counselor for consid- eration of placement in an ADAP. (85) "Support services" means services pro- vided to enhance an individual's progress in his primar\' treatment/habihtation pro- gram. (86) "Supported employment" means a day night service which involves paid work in a job which would otherwise be done by a non-disabled worker. Sup- ported employment is carried out in an integrated work site where a small number of people with disabilities work together and where the work site is not imme- diately adjacent to another program serv- ing persons with disabilities. It includes intensive Ln\ol\ement of staff working with the individuals in these integrated settings. (87) "Toddler" means an individual from one through three years of age. (88) "Treatment" means the process of pro- viding for the physical, emotional, psy- chological and social needs of cUents through ser\'ices. (89) "Treatment habilitation plan" means a plan in which one or more professionals, pri\ilegcd in accordance with 10 NCAC I4K .0319, working with the client and, in some cases, family members or other service providers, document which inter- ventions will be provided and the goals, objectives and strategies that will be fol- lowed in providing services to the client. (90) "Twenty-four hour facility in which medical care is an integral component" means a facility in which: (A) the medication needs of clients may be evaluated, medication prescribed and iab- oratorv- tests ordered to assist in the diag- nosis, treatment and monitoring of problems associated with the mental health, mental retardation or other devel- opmental disabilities or substance abuse disorder of clients; and (B) proper referral of the client is made to medical specialists when needed. (91) "Twenty-four hour service" means a ser- vice which is provided to a client on a 24-hour continuous basis. Statutory Authority G.S. MSB- 1 47. I22C-3; I22C-26; SECTION .0200 - LICENSURE .0210 LICENSE RENtW.\L (a) Renewal of regular licenses shall be as specified in G.S. 122C-23(e). (b) Prior to license renewal, the licensee shall submit to DPS the following information: ( 1) application for license renewal; (2) local fire a«4 sanitation inapoction reports i i vliich fhall b« submittod on an annual basis; aft4 (3) local sanitation inspection reports on an annual basis for facilities which pro\ide room or board; and (4] (r^ a brief description of any changes in the facility since the most recent initial or re- newal application form was completed. (c) Failure of the licensee to supply the re- quired information may result in revocation of the license to operate the facility. (d) DPS shall obtain any other information necessary for proper administration and enforce- ment of all applicable licensure requirements. Statutor\- Authority G.S. l22C-23(e); I30A-235: 143B-I47. SECTION .0300 - F.XCILITY AND PROGR.AM M \N.\GEMENT .0315 TRE.\TMENT/HABILIT.\TION PLANNING AND DOCUMENTATION (a) The governing body shall develop and im- plement written policies regarding indi\'idual treatment habilitation plans and the qualifica- tions of staff, based on education and experience, who will be responsible for implementation of such plans. 119 NOR TH CAROLINA REGIS TER .ipiil 15, 1 992 PROPOSED RULES (b) A treatment/habilitation plan shall be based upon an assessment of the cUent's condition, as- sets and needs, and the resources to meet these needs, and shall be developed in partnership with the client. (c) The parent or the legally responsible person of a minor shall have the opportunity to partic- ipate Ln the development and implementation of the minor client's individual treatment/ habili- tation plan. (d) The parent, with client consent, or the le- gally responsible person of an adult shall have the opportunity to participate in the development and implementation of the adult chent's individ- ual treatment/habilitation plan. (e) Clinical responsibility for the development and implementation of the treatment/habilitation plan shall be designated. (f) Initial treatment/habilitation objectives shall be documented, if services are to be provided, prior to the establishment and implementation of the comprehensive treatment/habilitation plan. . (g) Except as provided in Paragraphs (h) through (j) of this Rule, a comprehensive plan shall be developed and initiated within 30 days of admission for clients who are expected to re- ceive services from the facihty beyond 30 days. The plan shall include, as appropriate to the ch- ent's needs: (1) documentation of the estabhshed diagno- sis; (2) time-specific, measurable goals for treatment/habihtation; (3) general strategies or procedures to be undertaken in order to meet goals and the direct care staff responsible for implemen- tation; (4) time-specific, measurable education or treatment goals for family or significant others, if applicable; and (5) a schedule for time-specific planned re- views, which may be set, in addition to those required in Paragraph (k) of this Rule. (h) For all facihties serving infants and toddlers with or at risk for developmental disabihties, de- lays or atypical de\elopment, except for respite; (1) there shall be a habihtation plan which is referred to as the Individualized Family Service Plan (IFSP) which shall include: (A) a description of the child's present health status and levels of physical (in- cluding vision and hearing), language and speech, cognitive, psychosocial, and self- help skills development; (B) with the concurrence of the family, a description of the family's strengths and needs related to enhancing the develop- ment of the child; (C) goals for the child, and, if requested, goals for the child's family; (D) criteria and time frames to be used to determine progress towards goals; (E) planned habihtation procedures related to the goals; (F) a statement of the specific early inter- vention services to be provided to meet the identified child and family needs, the initiation dates, frequency and method, duration, intensity and location of service delivery, and the persons or agencies re- sponsible; (G) the designation of the staff member re- sponsible for service coordination; (H) the plans for transition into services which are the responsibility of the N.C. Department of PubUc Instruction, when apphcable; (I) the payment arrangements for the spe- cific services delineated in Subparagraph (h)(1)(F) of this Rule; (J) a description of medical and other ser- vices needed by the child, but which are not required under P.L. 99-457, and the strategies to be pursued to secure those services through public or private re- sources. (2) The IFSP shall be: (A) reviewed on at least a semi-annual basis or more frequently upon the family's re- quest; and (B) revised as appropriate, but at least an- nually. (3) The initial development and annual re- vision process for the IFSP for infants and toddlers shall include participation by: (A) the parent or parents of the child; (B) other family members, as requested by the parent; (C) an advocate or person outside of the family if the parent requests that the per- son participate; (D) the provider of the early intervention services; (E) the service coordinator designated for the family, if different from the provider of the early intervention services; and (F) the provider of the assessment sendee, if different from the provider of the early intervention services. The semi-armual review process shall include participation by persons identified Ln Subpara- graphs (h)(3)(A) through (F) of this Rule. If any of these individuals are unable to attend one of the development or review meetings, arrange- 7:2 NORTH CAROLINA REGISTER April 15, 1992 120 PROPOSED RULES ments shall be made for the person's involvement through other means such as participation in a telephone conference call, having a knowledge- able authorized representative attend the meeting or making pertinent records available at the meeting. (4) The IFSP for infants and toddlers is based upon the results of the assessment refer- enced in 10 NCAC 14K .0314(e). How- ever, early intervention services may commence before completion of this as- sessment if parental consent is obtained, the assessment is completed within the time period referenced in 10 NCAC 14K .0314(e), and an interim IFSP is devel- oped. The interim IFSP shall include: (A) the name of the ser\ice coordinator who will be responsible for the imple- mentation of the IFSP and coordination with other agencies and individuals; (B) goals for the child and family when re- commended; (C) those early inter\'ention services that are needed immediately; and (D) suggested acti\ities that may be carried out by the family members. (5) Each facility or individual who has a direct role in the provision of early intervention services specified in the IFSP is responsi- ble for making a good faith effort to assist each eligible child in achie\'ing the goals set forth" in the IFSP. (6) The IFSP shall be developed within 45 days of referral for those children deter- mined to be eligible. The referral shall be as defmed in lO^NCAC 14K .0314(e)(1 1). (i) The goals for a cUent who receives services from facihties pro\idLng day activity or alterna- tive family Uving, half-way house, therapeutic camp or group home services in which the supervision and therapeutic intervention are lim- ited to sleeping time, home living skills and lei- sure time activities, may be limited to life-skill, social or recreational goals. (j) The goals for a chent who receives services from a communit\ respite facility may be limited to the special needs of the client, including medications to be administered, dietary consid- erations and expectations regarding other ser- vices. (k) A full review of each client's treatment/ habilitation plan shall be conducted at least an- nually by the responsible professional in accord- ance with the facihtv s qualitv assurance plan, as determmedby 10 NCAC 14K .0319. ITie review shall include: (1) the chent's continuing need for service; and (2) a continuation or update of the client's treatment/ habihtation plan as defmed in Paragraph (g) of this Rule. Scatutory Authority G.S. I22C-26: I43B-147. SLBCH.APTER 14M - LICENSURE RULES FOR MENTAL RETARDATION/DEVELOPMENTAL DISABILITIES FACILITIES SECTION .0400 - GROUP HOMES FOR CHILDREN WITH MENTAL RETARD.\TION OR OTHER DEVELOPMENTAL DISABILITIES .0410 PARTICIPATION OF THE FAMILY OR LEGALLY RESPONSIBLE PERSON (a) Staff shall help the family in understanding mental retardation and other developmental dis- abilities, the child's development, and the extent of the child's handicap. (b) Family members shall be provided the op- portunity to participate in training seminars. (c) Each family shall be encouraged to main- tain an ongoing relationship with their child through such means as family visits to the facil- ity, and the child's visits with the parent or the legally responsible person outside the facility. (d) Reports to the parent or the legally re- sponsible person shall be submitted »* writing at least annually, with ^he opportunity oxtondod te- Ae parent ©f Ae logaUy rooponc . iblo poroon fof participation i«- at- l e ast BPt% conforoncQ annually. Reports mav be in writing or take the form of a conference and shall focus on the child's progress toward meetmg indi\'idual goals. Statutoiy Authority G.S. I22C-26: 143B-I47. l\otice is hereby given in accordance with G.S. I50B-2I .2 that the Division of Aging intends to adopt nde(s) cited as 10 \CAC 22Q .0/0/ - .0/03, .020/ - .0202. 1 he proposed effective date of this action is Julv /, /992. 1 he public hearing will be conducted at 2:00 p.m. on April 30. /992 at the Division of Aging, 693 Palmer Dr.. Room /2^ Raleizh, S.C. R easons for Proposed Actioru: 10 NCAC 22Q .0101 - Establishes the scope of the Housing and Home /mprovemcnt senice. 121 7:2 NORTH CAROLINA REGISTER April 15, 1992 PROPOSED RULES 10 NCAC 22Q .0102 - Provides definitions for Housing and Home Improvement service. 10 NCAC 22Q .0103 - Identifies target population for the Housing and Home Improvement service. 10 NCAC 22Q .0201 - Specifies client eligibility criteria for the Housing and Home Improvement service. 10 NCAC 22Q .0202 - Provides service character- istics for the Housing and Home Improvement service. Co ■ omment Procedures: Written comments will be received by the Director of the Division of Ag- ing through May 15, 1992. Verbal comments will be heard at the public hearing. CHAPTER 22 - AGING SUBCHAPTER 22Q - HOUSING AND HOME IMPROVEMENT SERVICE SECTION .0100 - SCOPE OF SERVICE .0101 SCOPE OF HOUSING AND HOME IMPROVEMENT SERVICE Housing and Home Improvement Service means assistance to older adults in obtaining or retaining, adequate housing and basic furnishings or appliances, or both. The service has three distinct elements: (1) Provision of counseling, advocacy and training to individuals or to groups; (2) Provision of labor and materials for minor renovations and repairs to dwellings to rem- edv conditions which are a risk to the per sonal health and safety of older adults or to enhance mobihtv for functionaUy impaired individuals; (3) Provision of basic furnishings or appliances, or both, to remed\' deficiencies which pose a risk to the basic health and safety of the older adult. Statutory Authority I43B-ISI.I(c). G.S. l43B-ISI.I(a)(II); .0102 DEFINITIONS (a) "Adequate housing" means a dwelling that is lawfully and reasonably sutficient to meet the needs of the individual and his family. (b) "Advocacy" means efforts on behalf of older adults who require assistance with accessing or obtaining community services and supports. (c) "Basic appliances" means items necessary for refngerating or preparing food, or heating or cooling the home. (d) "Basic furnishings" means essential house- hold items. (e) "Minor renovations and repairs" means restoration of the dwelling so as to lessen nsks to personal health and safety without including any structural change to the dwelling. (f) "Obtaining" under this service means lo- cation of and negotiating for adequate housing or basic furnishings and arranging for relocation to other housing or for the movement of basic furnishings. (g) "Older adult" means an individual 60 years of age or older. (h) "Own home" means that the individual is living in a residence he maintains for himself or is maintained for him by his caretaker. "Own home" does not include any group care. (i| "Retaining" under this service means nego- tiating with individuals who have influence over or control of the individual's ability to continue keeping his abode or his basic furnishings. Statutory Authority G.S. I43B-I8l.l(c). 143B-l8I.I(a)(II); .0103 TARGET POPULATION Older adults needing one or more elements of the service, such as counseling, advocacy, train- ing, renovations or repairs to dwellings, basic furnishings or appliances, to obtain or retain ad- equate housing that enables them to remain in, or return to, their own homes and alle\iates risk to their personal health and safety. Statutory Authority 143B-lSI.!(c). G.S. 143B-lSI.I(a)(II); SECTION .0200 - SERVICE PROVISION .0201 CLIENT ELIGIBILITY FOR HOUSING AND HOME IMPROVEMENT SERVICE (a) Persons 60 years of age and older who meet the criteria for the target population are deter- mined to be in need of the sen.'ice and are eligi- ble. (b) Persons acting on behalf of an eligible older adult are allowed to be a direct recipient of counseling, advocacy and training. Statutory .Authority G.S. ]43B-ISI.I(c). I43B-J8I.I(a)(ll); .0202 SERVICE DELIVERY (a) Renovations and repairs to renter occupied dwellings may be pro\ided onJv when this is not the responsibility of the landlord. (b) Basic furnishings or appliances, or both, may be provided to residents of renter occupied 7:2 NORTH CAROLINA REGISTER April 15, 1992 122 PROPOSED RULES dwellings only when such items are not the re- sponsihilitv of the landlord. (c) Reimbursement is a\'ailable for the cost of salar\, Iringe benefits and other administrative costs associated with the pro\lsion of Housing and Home Improvement Services. (d) Reimbursement is available for the costs of labor or matenal, or both, needed for reno- vations and repairs to the homes of eligible mdi- \'iduals under the foUowmg circumstances: ( 1 ) the reno\ations or repairs are minor and do not mclude any structural change: re- imbursements are limited to a maximum of eight hundred dollars ($800.00) for la^ bor or matenals. or both, per area of re- pair: e.g., roof, bathroom, and (2) the costs are reasonable and necessary, and (3) the condition of the home is such that minor renovations or repairs will make the dwelling safe and healthy for the oc- (c) cupants. Reimbursement is ilable for the lor me pur- chase of new or used basic fumistungs or apph- .ances as long as they are in such condition that they meet the needs of the indi\idual. Statutory Authority G.S. 143B-IS1.1 (a)( 1 1 J; 143B-ISl.l(c). ■k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k ly otice is hereby given in accordance with G.S. J50B-2J.2 that the Department of Human Re- sources intends to adopt rules cited as JO .\CAC 46D .0301 - .0306. 1 he proposed effective date of this action is July 1, 1992. 1 he public hearing will be conducted at 1:00 - 3:00 p.m. May 15, 1992 at the Council Building. Room 201 , 701 Barbour Drt\e. Raleigh, SC. IKeason for Proposed .Action: Rulemaking Peti- tion by the Child Day Care Commission. Cc omment Procedures: Written or oral com- ments may be submitted at the Public Hearing. Written comments may also be submitted prior to the Public Hearing. Comments or Questions should be directed to .Mr. Jackie Sheppard. APA Coordinator. Division of Facility Setyices, P.O. Box 29530. Raleigh. .\C 27626-0530. Telephone (919) 733-2342. CH.\PTFR 46 - DA\ C.VRE RULES SUBCHAPTER 46D - STATE DAY CARE SERMCES FUND SECTION .0300 - REQUIREMENTS FOR CONTRACTS WITH PRI\ .\TE AGENCIES .0301 SCOPE The rules of this Section shall apply to all pri- \ate agencies admmistcring the state subsidized day care program withm anv geo.graphical area of North Carolina under contractual arrangement with the Department of Human Resources or a local department of social services. Statutory .Authority G.S. 143B-153(2a). .0302 APPROVAL (a) All contracts with private agencies admin- istering the state subsidized day care program shall be approved by the Department prior to their execution. (b) Iiach private agency administering the sub- sidized dav care program shall pro\ide to the Department, pnor to execution of a contract to administer the program, a complete and detailed copy of Its budget, including both income and expenditures. Ihe private agency shaU demon- strate to the satisfaction of the Department suffi- cient dependable sources of income to insure its continued operation during the contract penod. Statutory Authority G.S. 143B-153(2aj. .0303 LENG LH OF CONTRACT Contracts with private agencies to administer the state da\ care program shall be for a term not to exceed one vear and shaU expire on or before the end of the state tlscal \ear. Statutory Authority G.S. 143B-I53{2). .0304 ADMINISTRATION OF FUNDS (a) Stale and federal funds for child dav care services shall be disbursed onl\ as reimbursement to the pri\ale agency for funds previousK" paid bv the agency to da\ care providers for da\ care services. lb) 1 he pn\ate agency shall reimburse pro\id- crs for authon/ed services within no more than 1(1 working da\ s after the end of the calendar month m which ser\'iceN w.ere proNided. Statutory Authority G.S. 143B-153{ 2a). .0305 ADMINISIR.UION OF PROGRAM (a) Each pri\'ate agency administering the sub- sidized day care program shall exercise an\- pow- ers and duties delegated to it under this Chapter 123 7:2 NORTH CAROLL\A REGISTER .April 15, 1992 PROPOSED RULES or under contract in a fair and impartial manner. It shall not discriminate with respect to any day care parent or day care provider in reaction to any complaint lodged with or against the agency by that parent or day care provider or in reaction to any opposition or support expressed by that parent or day care provider to a position taken by the agency on any day care issue. It shall comply fuUy with the parental freedom of choice provisions of 10 NCAC 46H .0109. (b) A private agency determined by the Secre- tary or his designee to have violated the pro- visions of this Rule shall be inehgible to contract for administration of the subsidized day care program funds for a period determined bv the Secretary of up to three years from the date of the Secretary's determination that a violation has occurred. Determinations by the Secretary may be appealed by the agency or b^ the complainant pursuant to G.S. 150B-23. Statutory Authority G.S. I43B-I53(2a). ..0306 RECORDS (a) If the private agency is organized as a cor- poration or unincorporated association, it shall upon request of the Department or other con- tractor, open its minute books of meetings of di- rectors, shareholders, or members for inspection. (b) Each private agency administering state day care funds shall maintain records of all receipts and disbursements for a period of three years following final payment for the contract period, or until all audits begun within the three-year period are complete. (c) If a private agency ceases operation, it shall provide the Department with copies of the re- cords specified in this Rule. (d) Each private agency administering state or federal day care services funds shall have a writ- ten policy for the inspection, examination, and copying of public records maintained by the agency. The written policy shall comply with the provisions of Chapter 132 of the General Stat- utes. Statutory .Authority G.S. I43B-I53(2a). TITLE 1 1 - DEPARTMENT OF INSURANCE ly otice is hereby given in accordance with G.S. 150B-2I .2 that the N.C. Department of Insurance intends to amend rules cited as 1 1 NCAC 3 .0002, .0006, .0008: repeal rules cited as II NCAC 3 .0005, .0007. 1 he proposed effective date of this action is July I, 1992. 1 he public hearing will be conducted at 10:00 a.m. on April 30, 1992 at the Dobbs Building, 3rd Floor Hearing Room, 430 North Salisbury Street, Raleigh, NC 2761 1. IXeasonfor Proposed Action: To reflect changes in the Department's structure and to make corre- sponding amendments and repeals to conform with contested case hearing rules. K^omment Procedures: Written comments may be sent to Bill Hale, Hearings Division. P.O. Box 26387, Raleigh, NC 276/ J. Oral presentations may be made at the public hearing. Anyone hav- ing questions should call Bill Hale or Ellen Sprenkel at (919) 733-4529. CHAPTER 3 - HEARINGS DIVISION .0002 PLRPOSE OF DIVISION The Legal Pivitiion counoolo. advioos aft4 fe«- Staff ift aH matters nocoooaP i f fe* tbe g e neral st4- minJGtration »f Ae insuranco laws &( tfei« stato aft4 othor matters over which tlw Commi i T i oionor has supor^'isor^' afl4 regulatory juriodiotion. The I learings Division has general supervisory au- thority over rule-making, proposed legislation, appeals to the Commissioner that are provided for and authorized by statute, departmental bul- letins and legal directives, hearings provided for in Chapter 58 of the General Statutes, sen,'ice of legal process upon the Commissioner as provided for in Chapter 58 of the General Statutes, and contested cases and hearings under Chapters 58 and 150B of the General Statutes and under Chapter 1 of this Title. The Commissioner shall appoint a Deputy Commissioner to oversee the operations of the I learings Division. Statutory Authority G.S. 58-2-1; 58-2-5: 58-2-25: 58-2-40(1); 58-2-50; 58- J 6-30: 58-16-35: 58-39-85; 58-21-100; 58-22-20(1); 5S-22-40(b); 58-33-30(h)(2); I50B-2I. .0005 SERVICE OF LEGAL PROCESS North Carolina General Statute S e ction 58 153, 5S 153.1. 58 3Q7. 58 - 1 10, 58 508(1), 58 5n(b), aft4 5 8 615(h)(2) provide ttet- f i onic e ©f l<*gai 1^^^^^^^^^^ ^^T^^T ^^^T T^^^^^^^ ^^^^T^^T ill..' La 1 v.tAXV.v^ v. v ^ * i 1. 1 ■ vj.i 4.a^- ..J f inf i uranco support organisations, ft4t retention afl4 purchasing groups, afi4 non r e sid e nt licenoooG doing business ift Ats stal e by sening such process upon tbe Commissionor ©f a deputy 7:2 NORTH CAROLINA REGISTER April 15, 1992 124 PROPOSED RULES 4t4¥ appointed fef ouch purpooo. The Commio sioncr vritt appoint a Joputy »f doputiofl within the dopartmont te roooivo aft4 porfcct aJi legal procoor . m accordanco ¥i4th- the pro' i ioiono ef the applicable otatutoD. Statutory Authority 58-397; 58-440; 58-61 5(h) (2). G.S. 58-153; 5S-I53.I; 58-508(1); 58-5l2(b); .0006 RFCORDS: ELFXTROMC PROCESS PROHIBITED (a) Hearing records, transcripts and orders of the Commissioner as well as copies of documents in civil actions in which the Commissioner is a party are on fde in the Logal \ learings Division and may be inspected in accordance with 44 NC.\C 4- rS^VU: Chapters 58 and 132 of the General Statutes and applicable mles in this Ti- tle, (b) Ser\ice of legal process upon the Commis- sioner as attorney to receive process under G.S. l.\-l. Rule 4 or under G.S. Chapter 58 is not valid and will not be accepted if it is made through any electronic medium, including fac- simile transmission. Only those methods of ser- vice of process upon the Commissioner provided for in G.S. l.-\-l. Rule 4 and in G.S. Chapter 58 will be recognized by the Commissioner or his duly appointed deputy. Statutory Authority G.S. 58-2-40(1); 58-2-100; 58-16-30; 58-16-35. .0007 PLRCMASE OF HEARING TRANSCRIPTS • A copy »f the hearing tninsoript may he pur char . od provided a roquoat thorufor i* made » i i vriting ' . vith the h f uring officer prior t€* Bf at t4*e oommencemont ©t the hearing. Statutory Authority G.S. 58-9.3. .0008 LEGAL OPINIONS (a) WTien a person who is regulated by the De- partment requests clanfication of a statute or rule where the person is engaging or is about to en- gage in a business acti\ity that may violate the statute or rule, the Department may honor the request, subject to a\ailable resources or in the discretion of the Deputy Commissioner of the Legal I learings Di\ ision. (b) A request for a legal opinion made by a person who is in\olved in a legal »f factual tfe- pute proceedmg. including litigation, arbitration, or mediation, or by a person who is invohed in a tactual dispute with any person regulated bv the Department shall not be honored. A request for a legal opinion on a hypothetical fact situation shall not be honored. (c) A requeot fof a legal opinion e» a hy- pothetical feet situation shall net- he honored. An\' legal opinion rendered under this Rule shall be rendered only bv an attorney dulv Ucensed by the State of North Carolina. (d) Every request for a legal opinion as t©' hew this Rule must be made in writing. Such written request must be addressed to: Commissioner of Insurance. A1TENT10N: Deputy Commis- sioner, Hearings Division, N.C. Department of Insurance. P.O. Box 26387, Raleigh. N.C. 27611. Lhe person making the request should ma>- be advised that it may not be appropriate for the Department to render a legal opinion and shall be advised that any legal opinion rendered by the Commissioner »f hi« counsel, other than a doclaratopy ruling issued under Qr^ 150B 17, is not binding on the Commissioner, and does not prevent the Commissioner from subsequently acting in a manner inconsistent with the legal opinion's conclusion. (e) This rule does not affect or apply to opin- ions rendered to the Commissioner or his em- ployees by the Attorney General or his employees. This rule does not apply to declaratory' rulings made under G.S. 150B-4 and 11 NCAC 1 .0300. Statutory Authority G.S. 58-2-25; 58-2-40(1). 1\ otice is hereby given in accordance with G.S. 150B-2I.2 that the .V.C. Department of Insurance intends to adopt rules cited as 1 1 XCAC 4 .0120 - .0122, .0429 - .0431; amend rules cited as 11 NCAC 4 .0319. .0415, .0417 - .0421, .0423 - .0424 and repeal rules cited as II SCAC 4 .0425 - .0428. I he proposed effecti\e date of this action is July 1. 1992. 1 he public hearing will be conducted at 10:00 a.m. on April 30. 1992 at the Dobbs Building. 3rd Floor Hearing Room, 430 Sorih Salisbury Street. Raleigh, \C'27611. R eason for Proposed A ction: II NCAC 4 .0120 - .0122, .0429 - .04.^1 - To keep current with insurance industn- practices and to 125 7-~> NORTH CAROLINA REGISTER April 15, 1992 PROPOSED RULES afford consumers better protection in dealing with agents and insurers. 1 1 NCAC 4 .0319, .0415, .0417 - .0421, .0423 - .0424 - To keep current with insurance industry practices and to afford consumers better protection in dealing with agents and insurers; and to clarify that rules regarding claims practices apply to first and third-party claims and to consolidate and up- date rule on after market parts. 1 1 NCAC 4 .0425 - .0428 - To consolidate and up- date the provisions of the rules on after market parts. Co 'Omment Procedures: Written comments may be sent to Bill Stevens, Consumer Division, P.O. Box 26387, Raleigh, NC 27611. Oral presenta- tions may be made at the public hearing. Anyone having questions should call Bill Stevens at (919) 733-2004 or Ellen Sprenkel at (919) 733-4529. CHAPTER 4 - CONSUMER SERVICES DIVISION SECTION .0100 - GENERAL PROVISIONS .0120 POLICY OR SERVICE FEES An agent, broker, or limited representative who intends to charge a policy or ser\'ice fee in ac- cordance with G.S. 58-33-85(b) shall not do so unless he complies with the following: (1) A sign that informs consumers in large bold print that a policy or service fee of (amount) will be charged, shall be displayed in a prominent place so as to be seen and read from any part of the office lobby. (2) The consumer's consent in writing is ob- tained with the date and amount shown each time a policy or service fee is charged. (3) A receipt for the payment of a policy or service fee shall be issued separately from the receipt issued for the policy premium. Statutory Authority G.S. 58-2-40; 58-33-85(b). .0121 PREMIUM PAYMENT RECEIPTS Premium payment receipts shall contain the name and address of the agency or agent, broker, or limited representative, or the insurer. Statutory Authority G.S. 58-2-40; 58-2-185; 58-2-/95. .0122 POWER-OF-ATTORNEY PROHIBITED \o agent, broker, or limited representative shall obtain a power-of- attorney from a consumer that authorizes the agent, broker, or limited represen- tative to sign insurance-related forms. Statutory Authority G.S. 58-2-40. SECTION .0300 - LIFE: ACCIDENT AND HEALTH .0319 CLAIMS PRACTICES: LIFE: ACCIDENT AND HEALTH INSUR.\NCE The commissioner shall consider as prima facie violative of G.S. 58 51.1(11) 58-63-15(11) the failure by an insurer to adhere to the following procedures concerning settlement of Ufe, acci- dent, health and disability claims when such fail- ure is so frequent as to indicate a general business practice: (1) Examining Physician's Opinion. When the patient's health is in question, an insurer should give greater weight to the opinion of a physician who has examined the patient than to the opinion of a physician who has not examined the patient and whose opinion is based solely on a review of the examining physician's notes or reports. As used in this Section, "examination of the patient" shall include the interpretation by a specialist of the results of diagnostic tests performed on the patient by others. (2) Settlement Offers. Initial offers of settle- ment or compromise made by an insurer or its representative shall remain open for a reasonable period of time. (3) Multiple Health Impairments. When an insured is confmed to the hospital with multiple health impairments some of which may be excluded from coverage, the insurer or its representative shall make pro rata payments where treatment for excluded conditions can be separated. (4) Assignment of Benefits. If an accident, health or disability contract does not pro- hibit assignment of benefits and a proper assignment (including notice to the insurer prior to the payment of the claim) is made, the insurer shaU honor the assignment even though it may have erroneously paid the in- sured. Submission of a completed claims form G33H and its successor(s) indicating that an assignment is on file shall be treated as though it were submission of the actual assignment. (5) Claim Status Reports. If benefits claimed under an accident, health or disability con- tract have not been paid within 44 30 days after receipt of the initial claim by the insurer, the insurer shall at that time mail a claim status report to the insured. The Claim Status Report shall include the fol- lowing information: 7:2 NORTH CAROLINA REGISTER April 15, 1992 126 PROPOSED RULES (C) The date upon which the insurer received the initial claim; 7he insurer s claim or other identifying number; The name of insurer's representative handling the claim, the representative's telephone number, and the hours and da\ s the representati\'e ma\ be contacted bv telephone: and (D) The identification of specific initial claim documentation disputed by the insurer. All initial claim documentation not dis- puted shall be paid within the 30-day time penod specilied m this Rule. Statutory' Authority G.S. 58-2-40; 5S-63-I5; 53-65- 1; 5S-65-40; 58-6"-65; 58-6^-150. SECTION .0400 - PROPERTY .\ND LI.\BILITY .0415 SAFE DRIVER INCENTIVE PLAN The following are Department of Insurance policies regarding the Safe Driver Inruranc t ? In- centive Plan C SDIP"): (Ij License revocation for refusal to submit to chemical tests shall not be considered con- viction of a moving traffic violation. (2) A conviction for driving the wrong way on a one-way street is not a con\'iction for driving on the wrong side of the road. (3) The revocation or suspension of a driver's License solely because of the accumulation of motor vehicle points shall not be consid- ered a conviction. (4) WTien new operators are added to an auto- mobile policy, their SDIP points may be added to the policy at the same time cover- age is extended to them. (5) Point ' j SDIP points for an operator whose Ucense has been suspended or revoked may be added only at the date the operator again becomes eligible for license with the follow- ing exception: SDIP points may be charged at the inception date of the current p>olicy if the operator has previously been con\icted of a moving traffic \ iolation w hile his license was suspended or resoked or if there is reli- able evidence that the operator does, in fact, operate a motor vehicle. (6) If an operator dies or permanently leaves an insured's household dunng the policy period, his SDIP points shall be removed at the time of his death or departure. (7) In at-fault accidents, SDIP points for bodily iniur\ shall not be assigned on account of pa\mcnt of medical costs for diagnostic purposes if the diagnostic procedures indi- cate that the accident did not result in bodily injury. Statutory Authority G.S. 58-2-40: 58-36-65; 58-36-75. .0417 DRIVE-IN CLAI.M SERVICE FACILITIES No insurer shall require any third-party claim- ant or insured to use a drive-in claim senice op- erated by the insurer. The third-party claimant's or insured s voluntary utilization of a drive-in claim ser\ice shall not prejudice the right of ei- ther party to obtain independent appraisals and negotiate settlement on the basis of such ap- praisals. Statutory Authority G.S. 58-2-40; 58-63- J5. .0418 TOTAL LOSSES ON MOTOR VEHICLES The commissioner shall consider as prima facie violative of G.S. 5 8 51.1(11) 58-63-15(11) the failure by an insurer to adhere to the following procedures concerning settlement of covered "total loss" motor vehicle claims when such fail- ure is so frequent as to indicate a general business practice: ( 1 ) If the insurer and the insured or third-partv claimant are initially unable to reach an agreement as to the value of the \ehicle. the insurer shall base any further settlement offer not only on published regional a\erage \'al- ues of similar vehicles, but also on the \alue of the vehicle in the local market. As used in this Rule, values" "published regional average means those a\cra2e automobile (2j values published in guides such as but not hmited to the guide book published bv the National .-Vutomobile Dealers Association or similar publications: but does not include those automobile values as determined bv and as identified in privately owned data- bases if access to such databases requires the insured or third-partv ckumant to pav or incur anv charge or fee, such as but not limited to telephone charges or fees, or newspaper or similar media ads. Local market value shall be detennined by using either the local market price of a comparable vehicle or, if no comparable vehicle can be found, quotations from at least two qualified dealers within the local market area. Addi- tionally, if the claimant represents that the vehicle actually owned by him was in better than average condition, the insurer shall gi\e due consideration to the condition of the claimant's \ehicle prior to the accident. Where the insurer has the right to elect to replace the vehicle and does so elect, the re- 127 \-2 \ORTH CAROLINA REGISTER April! 5, 1992 PROPOSED RULES quiries from the insured or third-party claimant shall be deemed to be a violation of this Rule. (b) -Ne adjuster ef apprais e r ohall: No claims management person, agent, limited represen- tative, broker, adjuster, appraiser, or other insur- er's representative shaU: f4-^ r e commend Ae utilLiation ef a particular motor vohicl e repair aon'ice without clearly informin g tbe claimant y«rt- he is under ae- obligation te- »w the recom mended repair ser i 'ico aft4 fway «se the sop i 'ice ©f has choice; (1) (-3) accept any gratuity or other form of remuneration from a repair oor i 'ico any provider of services; fef rooommonding that- repair oerv^ice t» claimants; (2) (4^ purchase salvage from a third-party claimant or insured whose claim he is ad- justing or appraising without first disclos- ing to the third-party claimant or insured the nature of his interest in the trans- action; • Hi H^ intimidate or discourage any third-party claimant or insured from seeking legal ad- vice and counsel by withdrawing and re- ducing a settlement offer previously tendered to the claimant or threatening to do so if the third-party claimant or insured seeks legal advice or counsel. No adjuster shall advise a third-party claimant or in- sured of the advisability of seeking »f ftet- G e oldng legal counsel nor BhoU recommend any legal counsel to any third-party claimant or insured under any circum- stance. Statutory Authority G.S. 58-2-40; 58-33-10; 58-33-25; 58-33-30; 58-35-25; 58-63-15; 58-65-40. .0424 AFTER MARKET ALTOMOBII.E PARTS (a) The purpose of this Rule is to set forth standards for prompt, fair, and equitable settle- ments of motor vehicle insurance claims with re- gard to the use of after market parts. (b) As used in this Rule: (1) "After market part" means a part made by a nonoriginal manufacturer. (2) "Insurer" includes any person authorized to represent the insurer with respect to a claim and who is acting within the scope of the person's insurer's authority. (3) "Nonorisanal Manufacturer" means any manufacturer other than the original manufacturer of a part. (4) "Fart" means a sheet metal or plastic part that generally is a component of the exte- rior of a motor vehicle, including an inner or outer panel. (c) No insurer shall require the use of an after market part in the repair of a motor vehicle, even if such after market part bears the stamp or seal of approval of any testing and quality certif- ication organization or association, unless the aT ter market part is at least equal to the original part in terms of fh^ quality, performance and warranty. Insurers specifying the use of after market parts shall include m the estimate the costs of any modifications made necessary by the use of after market parts, and shall furnish and provide the insurer's written warranty that the specified after market parts are at least equal to the original part in terms of fit^ quality, pert'orm- ance and warranty. (d) E\ery insurer that writes motor vehicle in- surance in this State and that intends to require or specify the use of after market parts must dis- close to its policyholders in writing, either in the policy or on a sticker attached thereto, the fol- lowing information m no smaller print than ten point type: IN THE REPAIR OF YOUR COVERED AUTO UNDER IHE PHYSICAL DAVIAGE COVERAGE PROVISIONS OF THIS POE- ICY. WE MAY REQUlRi: OR SPECIFY IHE USE OF AUlOMOnil E PARIS NOT MADE BY IHE ORIGINAL MANUt AC- rURER. FHESE PARIS ARE REQUIRED TO BE AT LEAST EQUAL IN^ TERMS OF FIT. QUAI IIY. PERFORMANCE, AND VVARR^XNIY TO THE ORIGINAL MAN- UFACTURER PARTS THE\ REPLACE. (e) An insurer must disclose to a claimant in wnting, either on the estimate or on a separate document attached to the estimate, the following information in no smaller print than ten point type: THIS ESTIMATE HAS BEEN PREPARED BASED ON IHE USE OF AUFOMOBILE PARIS NOr MADE BY THE ORIGINAL MANUFACIURER. PARES USED IN HIE REPAIR OF ^OUR VEHICLE BY OFIIER IHAN IHE ORIGINAL MANUEACFURER ARE REQLIRED TO BE A I LEASF EQUAL IN TERXLS OF FIT. QUALITY. PERIOR.M- ANCE. AND \V\RRANT\ TO 1TIE ORI- GINAL M \NU1 ACFURER PARIS I IIE^ ARE REPI ACING. AU after market p;u1s installed on a motor vehicle shall be clearly identified on the estimate and in- voice for such repair. (t') Violations of this Rule that are so frequent as to indicate a general business practice shall be 7:2 NORTH CAROLINA REGISTER April 15, 1992 130 PROPOSED RULES deemed bv the Commissioner to be an unfair trade practice under Article 63 of General Statute Chapter 58. Statutory Authority G.S. 58-2-40. (fe) Aft insurer must dic . olooo te a claimant i» w'riting, oithor »» Ae ootimato e* »» » ooporato documont attached te- the ostimato, th« following infonnation » He f . mallor print than teft point .0425 DKFIMTIONS A* ur . ed ift t4tts Section Ae i b# coniitruL'd a* follovs't i : f44 "After mark e t part" moans a part mado by a nonoriginal manufacturer. (5^ "Insur e r" includes aft¥ person authorLt',od to represent tfee insurer with rospuct te a claim aft4 who is acting within tfee scope ©f the person's authority. (-34 "Nonoriginal manufacturer" moans afty manufacturer other than the original man ufactur e r ef a part. {A^ "Part" moans a shoot m e tal ef plastic part th*t generally i* a component »f the exterior ef a motor vohiclo, inoludmg aft inner Bf outer panel. 'Statutory Authority G.S. 58-9. .0426 LIKE KIND AND QLALITY rv© insurer shall roquiro the e«e ef aft after market part i» the repair ef a motor vehicle ««- r^TTTTT 1 1 H^' 111 I \^' I Illlll I\.t^l 1. '\L1 I T^ HI T^TT^T l_U UllI 11^ 1 1 lU original part ift terms ©f frtr quality, porfonnanco aR4 warranty. Insurers specifying the ttse ef after market parts shall includ e i» the ostimato the costs »f aftv modifications made necessary by the twe ©f aft e r market parts. Statutory .Authority G.S. 58-9. .0427 DISCLOSURE REQUIREMENTS fa^ Fv e ry insurer that writes motor " l ehicle ift- suiance m this state aft4 that intends te- roquiro Bf specify the (*se »f after market parts must d+s- clos e t© it* policyholders ift ' i vnting. oithor i» the policy »f ©ft a sticker attached thereto, the fol- kusing infonnation i» ft© smaller print than teft point type: t^ 4444- RTPVIR 04^ V**t-«- CO\TRFD ALTO L\t:)l R 4444- PH' t .SICxr D\MAGE COVTRACib PROVISIONS »+- 4444^ POfc- \G^ Vi,* MrV¥- RLQLIRP Q^ SPLCIFY 444+- t*+- ©+- \L rOMOB J I ! ■: PARTS Jv04^ MADL 4A- 444fc ORIGINAL M VNLFAC ILRFR. TUFSF PARIS rVR4- RFQLIRFD TO ftt A* [ FAST FQL.AL t^ IFR.MS Of- F44t QL M ha. PFRI ' ORMANCF AV» WARRANIA +0 44+4- ORIGINAL MAN LFA( ILRFR PARIS II IF\ RFPL.VCF. 4444^ ESTIMATE HA^ BFEN PRE PARED B ASED ©N- 444e fe*6 ©4^ AUTOMOBILE P.VRLS NO* MADE R¥ 444fe OR I GINAL MANUFACIURER. PART S U S ED W44+fe REPMR 0+^ YOUR \ FIIICLE Wf OTHER T I 4AN 444fe ORIGINAL VLVNUFACFURER A n i: n r-r^i ' i r> r: r^ T'r\ n r? a -r i r: a c-t cmi r a i t^ TERM S 0+^F44t QU\LITY, PERFORM ANCE A^'rO W \RRANT\ TO 44+fe OW- GINAL MANLF.ACLURER PXRTS TIIEY AR4? REPLACING. I 111 LU H. I 1 1 IU.1 IVV- 1 Lnjll I J U IJ ITJllV^T ^T^T CT rT^T^^TTT T^mT^TV shall be clearly identified Bfi the e stimato afl4 ifi- ' I 'oico fo* such repair. Statutory Authority G.S. 58-9. .0428 ENFORCEMENT Violations ©f thi* Section which are s© frequent a* t© indicate a general business praotico shall be doomed by the Commissionor t© be a» unfair trade practice under /Vrtiolo iA ©f General Stat «te Chapter -^ Statutory .Authority G.S. 58-9. .0429 COMMINGLING No licensed person or other person may commingle premiums, insurance deposits, or other such funds. Such funds are considered to have been received in a fiduciary^ capacity on be- half of policyowners. The funds must be ac- counted for in such a manner as to msure that the funds are separate and distinct from the per- son's partnership's or corporation's funds or personid accounts at all times. The accounting shall be used for premiuins paid for insurers and returned premiums to policvowncrs. The ac- counting must demonstrate that funds due to companies or policyholders are available at all times. Statutory Authority 58-51-10: 58-51-15. G.S. 58-2-40: 58-2-195: .0430 RECORD RETENTION r\er\ agency, agent, broker or producer of re- cord shall maintain a file for each policy sold, and said file shall contain all work papers and wntten communications in such agency's, agent's, bro- ker's or producer of record's possession pert am - ing to the pohcv documented therein. Such file 131 7:2 NORTH CAROLINA REGISTER .April 15, 1992 PROPOSED RULES shall be maintained and kept for a period of three years from the date of cancellation or termination of the policy. Statutory Authority G.S. 58-2-40; 5S-65-I05. .0431 CANCELLATION OR REFUSAL TO RENEW POLICY OF AUTOMOBILE INSURANCE The Commissioner shall consider as prima facie violative of G.S. 20-310 the failure by an insurer to comply with G.S. 20-3 10(f) when cancelling or refusing to renew a policy of automobile in- surance; for the purpose of this Rule, the phrase "certificate of mailing", as used in G.S. 20-310(f), means a certificate issued and sigyied by an em- ployee of and bearing the date stamp of the United States Postal Service. Statutory Authority G.S. 58-63-15. 20-3/0; 58-2-40; ■k-k-k-k************** lyotice is hereby given in accordance with G.S. I50B-2I.2 that the N.C. Department of Insurance intends to adopt rules cited as 1 1 NCAC 17 .0001 - .0007. J. he proposed effective date of this action is July I, 1992. 1 he public hearing will be conducted at 2:00 p.m. on April 30, 1992 at the Dobbs Building, 3rd Floor Hearing Room, 430 Xorth Salisbury Street, Raleigh. NC 276/1. Jxeason for Proposed Action: To provide for guidelines for the health insurance and .Medicare counseling program for senior citizens and to fa- cilitate the receipt of federal funds by adopting these rules for the program. \^ omment Procedures: Written comments may be sent to Carla Suitt, SHIIP, P.O. Box 26387, Raleigh, NC 276/1. Oral presentations may be made at the public hearing. Anyone having questions should call Carla Suitt at (9/9) 733-0// 1 or Ellen Sprenkel at (919) 733-4529. CH.\PTER 17 - SENIORS' HEALTH INSURANCE INFORMATION PROGRAM .0001 DEFINITIONS As used in this Chapter: (1) "Counselor" means a private citizen who has been trained by SHIIP employees and is certified by SHIIP to \oluntanly provide counseling in accordance with this Chapter. (2) "Department" means the Department of Insurance of the State of North Carolina. (3) "SHIIP" means the Seniors' Health Insur- ance Information Program. (4) "SHIIP employee" means an employee of the Department of Insurance who is acting on behalf of SHIIP. Statutory Authority G.S. 58-2-5; 58-2-25; 58-2-40(1); 58-54-25; 58-55-30. .0002 PURPOSE AND DUTIES OF SHIIP (a) SHIIP is established within the Department as a statewide health benefits counseling pro.gram to provide .\ledicare beneficiaries with counseling in .Medicare, private health insurance, and related health care coverage plans. (b) In carrying out its duties under this Chap- ter. SHIIP: Acts as a clearinghouse for information and materials relating to Medicare and (21 (31 (41 health insurance. Develops additional information and ma- terials relating to Medicare and health in- surance, as necessary. Provides minimum standards and materi- als for training and certifying counselors. Provides information for health insurance educational activities that are conducted by employers, senior organizations, and other interested groups. (5) Supports, to the extent possible, additional emphasis on expansion of community educational acti\ities that would pro\ide for announcements on tcle\ision and in other media that briefly dcscnbe the na- ture of .Medicare. Medicare supplement insurance, and long-term care insurance, and the availability of consumer informa- tion and matenals under this Chapter. (6) Provides communit\' education on Medi- care. .Medicare supplement insurance, and long-term care insurance. (7) Recruits, trains, and coordinates counse- lors. (8) Assists indi\iduals and pro\ide5 informal advocac\ with respect to Medicare and health insurance benefits claims. Statutory- Authority G.S. 58-2-5; 58-2-25; 5S-2-40(/); 58-54-25: 58-55-30. .0003 LOCATION, MAILING ADDRESS, AND TELEPHONE 7:2 NORTH CAROLINA REGISTER April 15, 1992 132 PROPOSED RULES (a) The primary' location of SHIIP is 1600 Hillsborough Street, Raleigh, North Carolina 27605. (b) Ihe mailing address of SHIIP is Post Office Box 263S7. RaJei.ah, North Carolina, 27611. (c) The telephone numbers for SHIIP are toll- free 1-800-443-9354 and 1-919-733-0111. Statutory Authority G.S. 58-2-5: 58-2-40(1); 58-54-25; 58-55-30. 58-2-25; .0004 COUNSELORS (a) Counselors shall not engage in the solicita- tion of insurance sales. Licensed insurance agents and employees of insurance companies are not ehgible for training and certification as counselors bv SHIIP. (b) No counselor shall provide counseling ser- vices under this Chapter unless he or she has been trained and certified by SHIIP. (c) Before providing anv counseling services, counselors shall disclose, in wnting, to recipients of counseling services pursuant to this Chapter that the counselors are acting in good faith to provide mformation about the Medicare program and about health insurance policies and benefits on a volunteer basis, but that the information shall not be construed to be legal advice. (d) Counselors shall not endorse anv particular insurance companv or insurance agency, agent, broker, brokerage tlrm, or other private provider of health insurance. (e) Counselors shall keep all consultations with recipients of counseUng ser\'ices confidential, ex- cept for tiling of reports with SHIIP employees. Statutory Authority G.S. 58-54-25: 58-55-30. 58-2-5; 58-2-40(1); .0005 SHIIP INQUIRIES TO INSURERS .\ND AGENTS Fver>' insurer and agent or broker, upon receipt of an oral or written inquiry from a SHIIP em- ployee, shall furnish the employee with a com- plete and accurate response m writing, unless the response is specifically authorized by the em- ployee to be gi\'en orally. The response must be made bv the insurer, agent, or broker within seven calendar davs after receipt of the request; except that the employee may extend this time penod in an indnidual case. Statuton- Authority G.S. 58-2-5; 58-2-40(1); 58-2-/90: 58-2-/95: 58-54-25; 58-55-30. .0006 MEDICARE SUPPLEMENT POLICIES All Medicare supplement insurance pohcv forms that have been approved by the Life and Health Division of the Department are on file in the offices of SHIIP. Copies of these policy forms are a\ailable as soon as practicable after request therefor and payment of the copying fee specified in G.S. 58-6-5(3). Statutory A uthority 58-6-5(3): 58-54-25. G.S. 58-2-5; 58-2-40(/); .0007 BUYER'S GUIDE The Guide to Health Insurance for People with Medicare, as published by the National Associ- ation of Insurance Commissioners, or anv suc- cessor publication, is available from SHIIP to consumers, free of charge. Licensed insurance agents and employees of insurance companies shall obtain this publication from the msurance compames bv which they are appointed or em- ployed. Statutory A uthority 58-54-25; 58-55-30. G.S. 58-2-5; 58-2-40(/j; TITLE 15A - DEPARTMENT OF ENA IRONMENT, HEALTH, AND NATURAL RESOURCES No otice is hereby given in accordance with G.S. /50B-2/.2 that the North Carolina Wildlife Re- sources Commission intends to amend- rule(s) cited as 15A SCAC /OC .0305. J he proposed effective date of this action is July 1, /992. 1 he public hearing will be conducted at 7:00 p.m. on April 30, /992 at the South Iredell High School .4 uditorium, Troulman, .\'C. IXeason for Proposed Action: To protect the striped bass population in Lake Norman. (^ omment Procedures: Interested persons may present their views either orally or in writing at the hearing. In addition, the record of hearing will be open for receipt of written comments from April /5, 1992 to May /5, /992. Such written comments must be delivered or mailed to the N .C. Wildlife Resources Commission. 5/2 N. Salisbury St.. Raleigh, NC 2'^604-l 188. CHAPTER 10 - WILDLIFE RESOURCES AND WATER SAFETY SUBCHAPTER IOC - INLAND FISHING REGULATIONS 133 7:2 NORTH CAROLINA REGLSTER .April 15, 1992 PROPOSED RULES SECTION .0300 - GAME FISH .0305 OPEN SEASONS: CREEL AND SIZE LIMITS (a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and creel and size limits are as indicated in the following table: GAME FISHES DAILY CREEL LIMITS MINIMUM SIZE LIMITS OPEN SEASON Mountain Trout: Wild Trout Waters 4 7 in. (exc. 15) All year (exc. 2) Hatchery Sup- ported Trout Waters 7 None All year, except March 1 to 7:00 a.m. on first Saturday in April (exes. 2 & 3) Muskellunge and Tiger Musky 2 30 in. ALL YEAR Chain Pickerel ■ (Jack) None None ALL YEAR Walleye 8 (exes. 9 & 10) None (exc. 9) ALL YEAR Sauger 8 15 in. ALL YEAR Black Bass: Largemouth 5 (exc. 10) 14 in. (exes. 4, 8& 11) ALL YEAR (exc. 13) Smalknouth and Spotted 5 (exc. 10) 12 in. (exes. 4, 8& 11) ALL YEAR White Bass 25 None ALL YEAR Sea Trout (Spot- ted or Speckled) None 12 in. ALL YEAR Flounder None Bin. ALL YEAR Red drum (channel bass, red fish, puppy drum) None 14 in. ALL YEAR Striped Bass and their hybrids (Morone Hybrids) 8 aggregate (exes. 1 & 6) 16 in. (exes. 1, 6& 12) ALL YEAR (exes. 6& 16) Kokanee Salmon 7 None ALL YEAR Panfishes None None ALL YEAR 7:2 NORTH CAROLINA REGISTER April 15, 1992 134 PROPOSED RULES (exes. 5 & 14) (exc. 14) (exc. 5) NONGAME FISHES None None ALL YEAR (exc. 7) (b) Exceptions (1) In the Dan River upstream from its confluence with Bannister River to the Brantly Steam Plant Dam, aft4 in John H. Kerr, Gaston, and Roanoke Rapids Reservoirs, and Lake Norman, the creel limit on striped bass and Morone hybrids is four in the aggregate and the minimum size limit is 20 inches. (2) In designated public mountain trout waters the season for taking all species offish is the same as the trout fishing season. TTiere is no closed season on taking trout from Nantahala River and all tributaries (excluding impoundments) upstream from Nantahala Lake, and the impounded waters of power reservoirs and municipally-owned water supply reser\'oirs open to the public for fishing. (3) Under an agreement with Tennessee, the minimum size limit on trout in Caldenvood Reser\oir is seven inches. (4) Bass taken from streams designated as public mountain trout waters or from Caldenvood Res- en.oir may be retained without restriction as to size limit. (5) On Mattamuskeet Lake, special federal regulations apply. (6) In the inland fishing waters of Cape Fear, Neuse and Tar Rivers and their tributaries extending upstream to the first impoundment, the daily creel limit for strip>ed bass and their hybrids is one fish and the minimum length limit is 18 inches. In the Roanoke River up to the first impoundment, from July 1 through March 31 and June 1 through June 30 the daily creel limit for stripped bass is one fish and the minimum length limit is 18 inches: from April 1 to May 31 the daily creel limit is three fish, no fish between the lengths of 22 inches and 27 inches may be retained, and the minimum length Hmit is 16 inches, except no fish may be retained in Roanoke River and its tributaries including Cashie, Middle and Eastmost rivers from May 1 to December 31, 1991. (7) See 15A NCAC IOC .0407 for open seasons for taking nongame fishes by special devices. (8) The maximum combined number of black bass of all species that may be retained per day is five fish, no more than two of which may be smaller than the applicable minimum size limit. The minimum size limit for all species of black bass is 14 inches, with no exception in Lake Luke Marion in Moore County, in Reedy Creek Park lakes in Mecklenburg County, and in Currituck Sound and tributaries north of Wright Memorial Bridge; in North River and tributaries in Currituck and Camden Counties north of a line between Camden Point and the end of SR 1 124. In and west of Madison, Buncombe, Henderson and Polk Counties the minimum size limit is 12 inches. In B. Everett Jordan Reservoir a minimum size limit of 16 inches, with no exception, applies to largemouth bass. In Falls of Neuse Reser\'oir, east of SR 1004, Sutton Lake and Tuckertown Lake no black bass between the lengths of 12 inches and 16 inches may be retained, and the minimum size limit for black bass is 16 inches, except that the daily creel may contain two black bass of less than 12 inches in length. In W. Kerr Scott Reservoir there is no minimum size limit for spotted bass. (9) A minimum size limit of 15 inches applies to walleye taken from Lake James and its tributaries, and the daily creel hmit for walleye is four fish in Linville River upstream from the NC 126 bridge above Lake James. (10) The creel Hmit for black bass and walleye taken from Calder\vood Reservoir is 10. (11) The minimum size limit for all black bass, with no exception, is 18 inches in the following trophy bass lakes: (A) Cane Creek Lake in L'mon County; and (B) Lake Thom-A-Lex in Da\idson County. (12) In aU impounded inland waters and their tributaries, except those waters described in Ex- ceptions (1), the daily creel limit of striped bass and their hybrids may include not more than two fish of smaller size than the minimum size limit. (13) In Cane Creek Reservoir (Orange County) the season for taking largemouth bass is closed. (14) In Lake Tiller.", Falls Lake, Badin Lake, and Tuckertown Lake a daily creel limit of 20 fish and a minimum size limit of 8 inches apply to crappie. 135 7:2 NORTH CAROLINA REGISTER April 15, 1992 PROPOSED RULES (15) In Slick Rock Creek the minimum size is 7 inches for brook trout and 10 inches for brown and rainbow trout. (16) In designated inland fishing waters of Roanoke Sound, Croatan Sound, Albemarle Sound, Chowan River, Currituck Sound, Alligator River, Scuppemong River, and their tributaries (ex- cluding the Roanoke River and Cashie River and their tributaries), striped bass fishing season is closed when adjacent joint or coastal fishing waters are closed to hook and line fishing for striped bass by the Marine Fisheries Commission. Statutory Authority G.S. 113-134; 113-292: 113-304; 113-305. ■k-k-k*************** No otice is hereby given in accordance with G.S. I50B-2I.2 that the Emironment, Health, and Na- tural Resources, Division of Radiation Protection intends to amend rule cited as ISA NCAC II .0352. 1 he proposed effective date of this action is Oc- tober I, 1992. 1 rutructions on How to Demand a Public Hear- ing: Any person requesting that the Radiation Protection Commission hold a public hearing on this proposed amendment must submit a written request by April 30, 1992. The request must be submitted to Richard Fry, Division of Radiation Protection, P.O. Box 27687, Raleigh, NC 27611-7687. Ixeason for Proposed Action: This amendment is necessary for North Carolina licensees to be compatible with the US Nuclear Regulatory Commission's rules. The proposed text was in- advertently omitted by the agency when the rule was published in the North Carolina Register dated December 16, 1991. Co -omment Procedures: Written comments should be submitted to the Division of Radiation Protection, P.O. Box 27687, Raleigh, North Carolina 2761 1-7687. Written comments will be accepted until May 15, 1992. Any person re- questing information concerning this proposed amendment should contact Richard A/. Fry at (919) 571-4141. Ea editor's Note: This Rule has been adopted by the Radiation Protection Commission and is pending review by the Rules Review Commission for a proposed effective date of May 1 , 1992. CFrAPTER II -RADIATION PROTECTION SECTION .0300 - LICENSING OF RADIOACTIVE MATERIAL .0352 EMERGENCY PLANS (a) Each application to possess radioactive materials in unsealed form, on foils or plated sources, or sealed in glass in excess of the quantities in the table in Subparagraph (e)(1) of this Rule must contain either: (1) an evaluation showing that the maximum dose to a person off-site due to a release of radioactive materials would not exceed one rem effective dose equivalent or five rems to the thyroid; or (2) an emergency plan for responding to a release of radioactive material. (b) One or more of the following factors may be used to support an evaluation submitted under Subparagraph (a)(1) of this Rule: (1) the radioactive material is physically separated so that only a portion could be involved in an accident; (2) all or part of the radioactive material is not subject to release during an accident because of the way its is stored or packaged; (3) the release fraction in the respirable size range would be lower than the release fraction shown in Subparagraph (e)(!) of this Rule due to the chemical or physical form of the material; (4) the solubility of the radioactive material would reduce the dose received; (5) facihty design or engineered safety features in the facility would cause the release fraction to be lower than shown in Subparagraph (e)(1) of this Rule; (6) operating restrictions or procedures would prevent a release fraction as large as that shown in Subparagraph (e)(1) of this Rule; or (7) other factors appropriate for the specific facility. (c) An emergency plan for responding to a release of radioactive material submitted under Subpara- graph (a)(2) of this Rule must include the following information: 7:2 NORTH CAROLINA REGISTER April 15, 1992 136 PROPOSED RULES (1) brief description of the licensee's facility and area near the site; (2) identification of each type of radioactive materials acadent for which protective actions may be needed; (3) classification system for classifying accidents as alerts or site area emergencies; (4 ) identification of the means of detecting each type of accident in a timely maimer; (5) brief description of the means and equipment for mitigating the consequences of each type of accident, including those provided to protect workers on-site, and a description of the program for maintaining the equipment; (6j brief description of the methods and equipment to assess releases of radioactive materials; (7) brief description of the responsibilities of licensee personnel, should an accident occur, including identification of personnel responsible for promptly notifying off-site response organizations and the agency, and responsibilities for developing, maintaining, and updating the plan; (8) brief description of notification and coordination, to include a commitment to and a brief de- scription of the means to promptly notify off-site respxjnse organizations and request off-site assistance, includmg medical assistance for the treatment of contaminated injured on-site work- ers when appropriate, provided that: (A) a control point shall be established; (B) the notification and coordination shall be planned so that unavailability of some personnel, parts of the facifity. and some equipment wiU not pre\ent the notification and coordination: (C) the licensee shall also commit to notify the agency immediately after notification of the ap- propriate off-site response organizations, not to exceed one hour after the licensee declares an emergency; and (D) the reporting requirements in Subparagraph (c)(8) of this Rule do not substitute for or relieve the licensee from responsibility for complying with the requirements in the Emergency Planning and Community Right-to-Know Act of 1986, Title III. Public Law 99-499 or other state or federal reporting requirements; (9) brief description of the types of information on facility status, radioactive releases, and recom- mended protective actions, if necessary, to be given to ofi'-site response organizations and to the agency; (10) brief description of the frequency, performance objectives and plans for the training that the Licensee will provide workers on how to respond to an emergency, includmg any special in- structions and orientation tours the licensee would offer to fire, poUce, medical and other emergency personnel, where such training shaU: (A) familiarize persormel with site-specific emergency procedures; and (B) thoroughly prepare site personnel for their responsibilities in the event of accident scenarios postulated as most probable for the specific site, including the use of team training for such scenarios; (11) brief description of the means of restoring the facility to a safe condition after an accident; (12) brief description of pro\isions for conducting quarterly communications checks with off-site response organizations and biennial on-site exercises to test response to simulated emergencies where such provisions shaU meet the following specific requirements: (A) quarterly communications checks with off-site response organizations shall include the check and update of all necessary telephone numbers: (B) while participation of off-site response organizations in biennial exercises is encouraged but not required, the licensee shall invite off-site response organizations to participate in the biennial exercises; (C) accident scenarios for biennial exercises shall not be known to most exercise participants: (D) the licensee shaU critique each exercise using individuals who do not ha\e direct implemen- tation responsibility for the plan; and (E) critiques of exercises shall evaluate the appropriateness of the plan, emergency procedures, facilities, equipment, training of personnel, and o\erall effectiveness of the response; and (F) deficiencies found by the critiques in Subparagraph (c)(12)(E) of this Rule shall be corrected; (13) certification that the applicant has met its responsibilities under the Emergency Planning and Community Right-to-Know Act of 1986, litle III, Public Law 99-499. if applicable to the ap- plicant's activities at the proposed place of use of the radioactive material. (d) The hcensee shall allo\s' the off-site response organizations expected to respond in case of an ac- cident 60 days to comment on the licensee's emergency plan before submitting it to the agency. The 137 7:2 AORTH CAROLINA REGISTER April 15, 1992 PROPOSED RULES licensee shall provide any comments received within the 60 day comment period to the agency with the emergency plan. (e) Quantities of radioactive material requiring consideration of the need for an emergency plan for responding to a release as used in this Rule and special instructions for use are: (1) TABLE RADIOACTIVE MATERIAL Actinium- 228 .'\mericium-241 Americium-242 Americium-243 Antimony- 124 Antimony- 126 Barium- 133 Barium- 140 Bismuth-207 Bismuth-210 Cadmium- 109 Cadmium- 1 13 Calcium-45 Califomium-252 . Carbon- 14 (NON CO) Cerium- 141 Cerium- 144 Cesium- 134 Cesium- 137 (rhlorine-36 Chromium-51 Cobalt-60 (ropper-64 Curium-242 Curium-243 Curium-244 Curium-245 r uropium- 1 52 t'uropium-154 r,uropium-155 Germanium-68 Gadolinium- 153 Gold- 198 Hafnium- 172 Hafnium- 181 Holmium-166 m Hvdrogen-3 Iodine- 125 Iodine- 131 Indium- 1 14 m Indium- 192 Iron- 55 lron-59 Kr\'pton-85 Icad-210 Manganese- 56 Mcrcun-2()3 Molvbdcnum-99 Ncplunium-237 RELEASE QUANTITY =^RACTION (CURIES) 0.001 4,000 .001 2 .001 2 .001 2 .01 4,000 .01 6,000 .01 10,000 .01 30,000 .01 5,000 .01 600 .01 1,000 .01 80 .01 20,000 .001 9 (20 mg) .01 50,000 .01 10,000 .01 300 .01 2,000 .01 3,000 .5 100 .01 300,000 .001 5,000 .01 200,000 .001 60 .001 3 .001 4 .001 2 .01 500 .01 400 .01 3,000 .01 2,000 .01 5,000 .01 30.000 .01 400 .01 7,000 .01 100 .5 20,000 .5 10 .5 10 .01 1,000 .001 40,000 .01 40,000 .01 7,000 1.0 6,000,000 .01 8 .01 60,000 .01 10,000 .01 30,000 .001 2 7:2 NORTH CAROLINA REGISTER April 15, 1992 I3S PROPOSED RULES Nickel -63 Niobium-94 I'hosphorus-32 Phosphorus-33 t\ilonium-210 Potassium-42 Promethium-145 Promethjum-147 Ruthenium- 106 Samanum- 151 Scandium-46 Selcmum-75 Silver- 110 m Sodium-22 Sodium-24 Strontmm-89 Strontium-90 Sulfur-35 Technetium-99 Technetium-99 m Tellurium- 127 m Tellurium- 129 m Terbium- 160 ThuHum-170 Tin- 113 Tin- 123 Tin- 126 Titanium-44 Vanadium-48 Xenon- 133 Yttrium-91 Zinc-65 Zirconium-93 ZircorLium-95 Any other beta-gamma emitter Mixed fission products Mixed corrosion products Contaminated equipment beta-gamma Irradiated matenal. any form other than solid noncombustible Irradiated material, solid noncombustible Mixed radioactive waste, beta-gamma Packaged mixed waste, beta-gamma .Ajiy other alpha emitter Contaminated equipment, alpha Packaged waste, alpha m m m m m m m m m m m m .01 .01 .5 .01 .01 .01 .01 .01 .01 .01 .01 .01 .01 .01 i.o .01 .01 .01 .01 .01 .01 .01 .001 .01 .001 .01 .001 .001 .0001 .0001 20,000 300 100 1.000 10 9.000 4,000 4.000 200 4.000 3.000 10,000 IJ)00 9.000 10.000 3,000 90 900 10,000 400,000 5,000 5,000 4,000 4,000 10,000 3,000 1,000 100 7,000 900,000 2,000 5,000 400 5.000 10,000 1,000 10,000 10,000 1.000 10,000 1,000 10,000 ~l 20 20 (2) For combinations of radioactive materials, consideration of the need for an emergency plan is required if the sum of the ratios of the quantity of each radioactive material authorized to the quantity listed for that material in the table in Subparagraph (e)(1) of this Rule exceeds one. (3) Waste packaged in Type B containers, as defmed m 10 CFR Part 71.4, does not require an emergency plan. Statutory Authority G.S. I04E-7: 104E-1S. 139 7:2 NORTH CAROLINA REGISTER April 15, 1992 PROPOSED RULES ****************** J\ otice is hereby given in accordance with G.S. 150B-21.2 that DEHNR - Division of Epidemiology intends to amend rule(s) cited as ISA NCAC I9H .0401 - .0403, .0601, .0903. 1 he proposed effective dale of this action is July 1, 1992. 1 he public hearing will be conducted at 10:00 a.m. on May 12, 1992 at the Norton Board Room, 6th Floor Cooper Memorial Building, 225 N. McDowell Street, Raleigh, N.C. J\easons for Proposed Actions: ISA NCAC 19H .0401 - .0403 - to increase the re- quirements for filing delayed birth certificates for minor children. ISA NCAC 19H .0601, .0903 - to eliminate infor- mation concerning amendments to a certificate from a certified copy. Co -omment Procedures: Any person requiring additional information concerning the proposed rules should contact Helen A. Simmons, Vital Records Section, P.O. Box 29537, Raleigh, NC 27626-0537, (919) 733-3000. Written comments on these rules may be sent to Ms. Simmons at the above address, or submitted at the public hearing. If you desire to speak at the public hearing, notify Ms. Simmons at least 3 days prior to the public hearing. CHAPTER 19 - HEALTH: EPIDEMIOLOGY SUBCHAPTER I9H - VITAL RECORDS SECTION .0400 - DELAYED REGISTRATION OF BIRTHS .0401 GENERAL REQUIREMENTS All certificates registered one or more years after the date of birth are to be registered on a Delayed Certificate of Birth Form prescribed by the State Registrar. Any living person bom in this state whose birth is not recorded, or his parent, or guardian nert ef kiftr ef older person acting fof tiie registrant may apply to the register of deeds in the county of birth on a form prescribed by the State Registrar. Such completed application form shall be retained by the register of deeds. Statutoty Authority G.S. l30A-92(7). .0402 DOCLIIVIENTARY EVIDENCE: FACTS TO BE ESTABLISHED (a) The minimum facts which must be estab- lished by documentary evidence shall be: (1) the full name of the person at the time of birth; (2) the date and place of birth; (3) the full maiden name of the mother; and (4) the full name of the father, except for births out of wedlock. Documents presented, other than personal affi- davits, to establish these facts must be from in- dependent sources and shall be in the form of the original record or a duly certified copy thereof or a signed statement from the custodian. These documents must have been estabhshed at least five years prior to the date of application. However, documents estabhshed less than five years prior to date of application shall be ac- cepted if created prior to the apphcant's fifth birthday. (b) An affidavit of personal knowledge, to be acceptable, must be signed by one of the parents, or a person older than the registrant having knowledge of the facts of birth before an official authorized to administer oaths. (c) For applicants 1 to 1 1 years old, two pieces of documentary evidence are required, only one of which may be an affidavit. Both records must prove name, aH4 date of birth, A4- loaot eR« must prov e parentage, and »«» must prov e place of birth. (d) For applicants 12 and over, three pieces of evidence are required, only one of which may be an affidavit. All three must prove name and date of birth, two must prove place of birth, and one must prove parentage. (e) All evidence shall be abstracted or included with the application and must be signed by the appropriate official. The application and affida- vits of personal knowledge shall be retained by the register of deeds for one year. Other sup- porting documents may be returned to the ap- pUcant up>on completion of the certificate. Statutory Authority G.S. l30A-92(7). .0403 COMPLETION OF THE CERTIFICATE (a) Upon proper submission of apphcation and supporting evidence, the register of deeds shall abstract on the delayed certificate of birth a de- scription of each document submitted to support the facts shown on the delayed birth certificate. The description shall include: (1) the title or description of the document; (2) the name and address of the affiant, if the document is an affidavit; or of the custo- dian, if the document is an original or 7:2 NORTH CAROLINA REGISTER April 15, 1992 140 PROPOSED RULES certified copy of a record or a signed statement; (3) the date of the original filing of the docu- ment being abstracted; and (4) the information regarding the birth facts supported by the document. (b) Each delayed certificate of birth shall be signed and sworn to before an official authorized to administer oaths by the person whose birth is to be registered if such person is 18 years of age and is competent to sign. Otherwise, the certii~- icate shall be signed and swom to by »«« »f tb* foUo' . ' i ing m the indicated ordijr ef priority: f4-} one of the parents or guardians of the regis- trant. (-if Ae fte^ ef kift ei tj^ njgiotrant, &f f^ afty other older peroon basing peroonal loiowledge ef the facts ef birth. Statutory Authority G.S. l30A-92(7). SECTION .0600 - CERTIFIED COPIES ..0601 BIRTH CERTIFICATES (a) There shall be three forms of copies of birth certificates: (1) a photocopy of the original record ex- cluding medical and health related infor- mation with facsimile of the signature of the State Registrar and raised seal and date issued; and (2) a typed copy prepared on a form printed on safety paper with facsimile of the sig- nature of the State Registrar and raised seal; the form shall provide at least the following items of information: (A) name and sex of child; (B) date and place of birth; (C) names, ages (at time of birth), and birthplaces of father and mother; (D) date fded with local registrar; (E) certificate number; and (F) date of issue; and \ "^J / 1 H_ 1 1 I ..* LllIIV-lIU V^J- (-LI lU UUIV \Ji \Xl.lT.\-H\Jil\\~ III , (3) a typed wallet -size card with facsimile of the signature of the State Registrar pro- viding as a minimum the following items of information: (A) name and sex of child; (B) date and place of birth; (C) date filed with local registrar; (D) certificate number; (E) date of issue; and (F) changes of names by court order noted on back for persons older than 15 years unless good cause is shown for deleting the notation. (b) .A wallet-size card shall be issued when specifically requested. (c) A typed copy shall be issued when specif- ically requested, when the original certificate cannot be photocopied, when the original has been corrected or amended, or when the record is that of an adopted or legitimated person. (d) A photocopy shall be issued when specif- ically requested or whenever it is most con\en- ient except in cases in which a typed copy is required. (e) In cases when the individual is known to be deceased, the word "DECEASED" shall be added to the certificate in a prominent location. Ihis procedure shall apply to copies issued by the Vital Records Section and to each register of deeds or local health department that issues cer- titied copies of birth certificates. Statutory Authority G.S. l30A-92(7). SECTION .0900 - CORRECTIONS AND AMENDMENTS .0903 CORRECTIONS REQUIRING PROOF The following items may be corrected upon written request on forms prescribed by the State Registrar properly notarized and signed by the registrant if of legal age or by one or both parents or guardians of a minor child provided that the request is supported by at least one piece of documentary evidence: (1) state of birth (deaths), (2) birthplace of parents (births), (3) county of birth, (4) speUmg of given names of child (births) af- ter four years of birth, (5) speUmg of father's or mother's name, (6) age of parents, (7) sex of child if incorrectly recorded, (8) date of birth, and (9) hour of birth. P©f th e o e corrcctionG, a.scept se* ©f child aft4 hour ef birth, tl*e certificate ' : ' &haU be marked "am e nd e d" »!t shall certified copies subsequently issued. All available evidence including any which might not have been submitted by the applicant shall be evaluated by the State Registrar. The existence of inconsistent or con- flicting evidence may be considered cause for de- nying any request for correction in which case the applicant shall be duly ad\ ised. Statutory Authority G.S. l30A-92(7). 141 7:2 NORTH CAROLINA REGISTER April 15, 1992 PROPOSED RULES TITLE 19A - DEPARTMENT OF TRANSPORTATION Jy otice is hereby given in accordance with G.S. I50B-21.2 that the Division of Motor Vehicles in- tends to adopt rule(s) cited as I9A NCAC 3B .0801. 1 he proposed effective date of this action is July I, 1992. _ _ 1 nstructions on how to demand a public hearing (must be requested in writing within 15 days of notice) : The agency will schedule a public hear- ing on the proposed rule if it receives a written request for a hearing within 15 days from the date the proposed text is published. The request for hearing should be mailed to: William R. Stout, Motor Carrier Safety Unit, Division of Motor Vehicles, 1 100 New Bern Avenue, Raleigh, NC 27697. IXeason for Proposed Action: To further define gross vehicle weight rating in the absence of the manufacturer' s label. Co omment Procedures: Written comments on the proposed rule may be submitted by mailing the comments to the following address within 30 days after the proposed text is published or until a public hearing is held, whichever is longer: William R. Stout, Motor Carrier Safety Unit, J J 00 New Bern Avenue. Raleigh, NC 27697. CHAPTER 3 - DIVISION OF MOTOR VEHICLES SI BCHAPTER 3B - DRIVER LICENSE SECTION SECTION .0800 - GROSS VEHICLE WEIGHT RATING (GV"VVR) .0801 DEFINITION The \-alue specified by the manufacturer as the ma.ximum loaded weight of a vehicle. The GVWR of a combination vehicle is the GVWR of the power unit plus the GVAVR of the towed unit or units. In the absence of the manufactur- er's GVWR label affixed to the vehicle, the reg- istered weight or the actual weight, whichever is greater, shall be the GVWR. ly otice is hereby given in accordance with G.S. I50B-2I.2 that the Division of Motor Vehicles in- tends to amend rule(s) cited as 19A NCAC 3D .0515. 1 he proposed effective date of this action is July I, 1992. 1 nstructions on how to demand a public hearing (must be requested in writing within 15 days of notice) : The agency will schedule a public hear- ing on the proposed rule if it receives a written request for a hearing within 15 days from the date the proposed text is published. The request for hearing should be mailed to: B.C. Bristle, Enforcement Section, Division of Motor Vehicles, 1100 New Bern Avenue, Raleigh, NC 27697. iXeason for Proposed Action: To establish the duration of a suspension or revocation of a Safety Equipment or Safety Equipment Exhaust Emis- sions Inspection Station License based upon a point system. Co Statutory Authority G.S. 20-37.22. •k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-k omment Procedures: Written comments on the proposed rule may be submitted by mailing the comments to the following address within 30 days after the proposed text is published or until a public hearing is held, whichever is longer: E.C. Bristle, Enforcement Section, Division of Motor Vehicles, 1 100 New Bern Avenue, Raleigh, NC 27697. CHAPTER 3 - DIVISION OF MOTOR VEHICLES SLBCHAPTER 3D - ENFORCEMENT SECTION SECriON .0500 - GENERAL INFORM.ATION REGARDING SAFETY INSPECTION OF MOTOR VEHICLES .0515 SAFETY INSPECTION LICENSING AND PROCEDIRES (a) The Director of the Office of Administrative I learings has determined that publication of the complete regulations governing hcensing as a North Carolina Safety Equipment Inspection Station, and the requirements and procedures for such inspections are impracticable, and that the substance of this Rule should be summarized in accordance with the provisions of Gr^ 150B 63(c). 26 NCAC 2A .0207. (b) The regulations and procedures go\eming the licensing of Safety Equipment Inspection Stations for all counties are contained in a man- ual entitled "Safety Equipment Emission In- spections, Windshield Certificate Replacement 7:2 NORTH CAROLINA REGISTER April 15, 1992 142 PROPOSED RULES Regulations Manual," as amended July \^ 1992. This manual includes all procedures and forms to be used in the process of the safety inspection required by law. (c) Official copies of these manuals are avail- able upon request from the Enforcement Section, Division of Motor Vehicles, Department of Transportation, 1100 New Bern Avenue, Raleigh, N.C. 27697. Statutory Authority G.S. 20-1; 20-117. 1(a): 20-122: 20-122.1: 20-123.1: 20-124: 20-/25: 20-125.1: 20-126; 20-127; 20-128; 20-128.1; 20-129; 20-129.1; 20-130; 20-130.1; 20-130.2; 20-130.3; 20-131 through 20-134; 20-183.2; 20-183.3; 20-183.4: 20-183.5; 20-183.6; 20-183.7; 20-183.8. •k-k'k-k-k-k-k-k-k'k-k^-k'k-k'k-k-k No otice is hereby given in accordance with G.S. 150B-2I .2 that the Division of Motor Vehicles in- ' tends to amend rule(s) cited as 19A NCAC 3D .0801. Th he proposed effective date of this action is July 1. 1992. 1 nstructions on how to demand a public hearing (must be requested in writing within 15 days of notice) : The agency will schedule a public hear- ing on the proposed rule if it receives a written request for a hearing within 15 days from the date the proposed text is published. The request for hearing should be mailed to: William A. Cox, Drti'er License Section, 1 100 Sew Bern Avenue. Raleigh. NC 27697. I\eason for Proposed Action: 19A NCAC 3D .080/ (b)(2) states the Division's Exemption Re- view Officer may approve anyone for a commercial drivers license when they fail to meet the Federal Motor Carrier Safetv Regulations Part 391.ll{b){l) and 39l.4l{b)(r) through (II), provided they meet our State Standards. It is requested that this regulation continue to allow this Authority indefinitely. Cc ornment Procedures: the proposed rule may be comments to the followin after the proposed text public hearing is held, William A. Cox, \C Di\ Dri\er License Section, Raleigh. .\ort/i Carolina Written comments on submitted by mailing the g address within 30 days is published or until a whichever is longer: ision of Motor Vehicles, 1 100 A'evv Bern Avenue, 27697. LLdito/s Mote: This Rule has been filed as a temporary rule effective March 30, 1992 for a period of 180 days to expire on September 26, 1992. CHAPTER 3 - DIVISION OF MOTOR VEHICLES SUBCHAPTER 3D - ENFORCEMENT SECTION SECTION .0800 - SAFETV RULES AND REGULATIONS .0801 SAFETY OF OPERATION AND EQUIPMENT (a) The rules and regulations adopted by the U.S. Department of Transportation relating to safety of operation and equipment (49 CFR Parts 390-398 and amendments thereto) shall apply to all for-hire motor carrier vehicles, whether common carriers, contract carriers or exempt carriers and all private motor carriers, while engaged in interstate commerce over the highways of the State of North Carohna. (b) The rules and regulations adopted by the U.S. Department of Transportation relating to safety of operation and equipment (49 CFR Parts 390-398 and amendments thereto) shall apply to all for-hire motor carrier vehicles, whether common carriers, contract carriers or exempt carriers and all private motor carrier ve- hicles engaged in intrastate commerce over the highways of the State of N'oith Carolina if such vehicles have a GVWR of greater than 26,000 pounds; are designed to transport 16 or more passengers, including the driver; or transport hazardous materials required to be placarded pursuant to 49 CFR 170-190. Provided, the following exceptions shall also apply to all intra- state motor carriers: (1) An intrastate motor carrier driver may not dri\e more than 12 hours following eight consecutive hours off duty; or for any pe- riod iiftcr having been on duty 16 hours following eight consecuti\e hours off duty; or after having been on duty 70 hours in seven consecutive days; or more than 80 hours in eight consecutive days. An intrastate driver will be determined by his previous seven days of operation. (2) Persons who otherwise qualify medically to operate a commercial motor veliicle within the State of North Carolina will be exempt from the provisions of Part 391.11(b)(r) and Part 391.41(b)(1) through (11) and therefore will be au- thorized for intrastate operation if licun i' L'd prior to March ^ I9Q2. afe approved by 143 '-•2 NORTH CAROLINA REGLSTER .April 15. 1992 PROPOSED RULES an Exemption Review Officer appointed by the Commissioner of Motor Vehicles. aH4 moot ali oth e r roquiroments ef tbtt Soction. These drivers shall continue to be exempt upon completion of a biennial medical examination indicating the condi- tion has not worsened or no new disqual- ifying conditions have been diagnosed and upon continued approval of an Ex- emption Review Officer, (c) The rules and regulations adopted by the U. S. Department of Transportation relating to inspection, repair and maintenance of motor ve- hicles (49 CFR Part 396.17 through 396.23 and including Appendix G, and amendments thereto) shall apply to all for-hire motor carrier vehicles, whether common carriers, contract carriers or exempt carriers and all private motor carrier ve- hicles engaged in intrastate commerce over the highways of the State of North Carolina if such vehicles have a GVWR of greater than 10,000 pounds. Provided, any farm vehicle shall be ex- empt from the requirements of this Paragraph if: . (1) It is being operated by a farmer (or a per- son under the direct control of the farmer) as a private motor carrier of property; (2) It is being used to transport either: (A) agricultural products, or (B) farm machinery, farm supplies, or both, to and from a farm; (3) It is being operated solely within this State and within 150 air-miles of the farmer's farm; (4) It is not being used in the operation of a for-hire motor carrier; and (5) It is not carrying hazardous materials of a type or quantity that requires the vehicle to be placarded in accordance with 49 CFR 177.823. (d) Every motor vehicle registered or required to be registered in North Carolina and subject to the inspection requirements of the Federal Motor Carrier Safety Regulations (49 CFR Part 396) must display a current approved federal in- spection certificate when operated on the streets and highways of this State. On self-propelled vehicles the inspection certificate shall be located on the outside of the driver's door exclusive of the window or rear view mirror. On trailers and semitrailers, the inspection certificate shall be lo- cated on the left side as near as possible to the outside lower front of the vehicle. The in- spection certificate shall contain at least the fol- lowing legible information: (1) The date of inspection; (2) Ncime and address of the motor carrier or other entity where the inspection report required by 49 CFR 396.21(a) is main- tained; (3) Information uniquely identifying the ve- hicle inspected if not clearly marked on the vehicle; and (4) A certification that the vehicle has passed an inspection in accordance with 49 CFR 396.17. Statutory Authority G.S. 20-37.22; 20-I83.2(aJ; 20-384. 7:2 NORTH CAROLINA REGISTER April 15, 1992 144 RRC OBJECTIONS 1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. l43B-30.2(c). State agencies are required to respond to RRC as provided in G.S. I43B-30.2(d). AGRICULTURE Plant Industry 2 A'C-J C 48E .0101 - Definitions Agency Revised Rule Agency Responded Agency Withdrew Rule CRIME CONTROL AND PUBLIC SAFETY State Highway Patrol I4A NCAC9H .0304 - Notifying Registered Chiner No Response from Agency Agency Withdrew Rule ECONOMIC AND CO>LMlAIT\ DEVELOPMENT Credit Union Division 4 NCAC 6C .0407 - Business Loans Agency Revised Rule ENA IRONMENT, HEALTH, AND NATURAL RESOURCES Coastal Management /5A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas .'igency Responded Rule Returned to Agency Agency Filed Rule with OA H 15A NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing Rule Returned to Agency Agency Filed Rule with OAH ISA NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing Rule Returned to Agency Agency Filed Rule with OA H /5A NCAC 7 J .0302 - Petition For Contested Case Hearing Rule Returned to Agency Agency Filed Rule with OAH ISA NCAC 7 J .0302 - Petition For Contested Case Hearing Rule Returned to .igency .4gency Filed Rule with 0.4 H 1 5.4 NC.4C 7 J .0402 - Criteria for Grant or Denial of Permit .4pplications ISA NCAC 7M .0201 - Declaration of General Policy Agency Responded Agency Responded Rule Returned to Agency Agency Filed Ride with OAH RRC Objection I Oj 17191 RRC Objection I0II7I91 No Action 12/19/91 02/20/92 RRC Objection 12/19/9/ No Action 01/24/92 02/20/92 RRC Objection 01/24/92 Obj. Removed 02/20/92 RRC Objection No .Action Eff RRC Objection Eff RRC Objection Eff RRC Objection Eff RRC Objection Eff RRC Objection RRC Objection No .Action No Action Eff 01/24/92 01/24/92 01/24/92 03/01,92 02/20,92 03/19/92 03/31/92 03/19,92 03/19,92 04/01/92 02/20/92 03/19,92 03/31/92 03/19/92 03/19,92 04/0//92 10/17/91 10/17191 12/19,91 01/24.92 01/24,92 03/01,92 145 7:2 NORTH CAROLINA REGISTER April 15, 1992 RRC OBJECTIONS ISA NCAC 7M .0202 - Policy Statements Agency Responded Agency Responded Rule Returned to Agency Agency Filed Rule with OAH ISA NCAC 7M .0303 - Policy Statements Agency Responded Agency Responded Rule Returned to Agency Agency Filed Rule with OAH ISA NCAC 7M .0403 - Policy Statements Agency Responded Agency Responded Agency Revised Rule ISA NCAC 7M .0901 - Declaration of General Policy Agency Responded Agency Responded Rule Returned to Agency Agency Filed Rule with OAH Environmental Management ISA NCAC 2E .0107 - Delegation Agency Revised Rule Governor's Waste Management Board /SA NCAC MB .0002 - Definitions Agency Revised Rule Sedimentation Control ISA NCAC 4 A .0005 - Definitions Agency Responded Agency Revised Rule ISA NCAC 4C .0007 - Procedures: Notices Agency Responded RRC Objection /0//7I9J No Action J 2/ J 9/ 9 J No Action 01 124192 0II24I92 Effi 03101192 RRC Objection I0il7i9l No A ction 12119191 No Action 01124192 01124192 Effi 03/01/92 RRC Objection 10/17/91 No Action 12/19/91 No Action 01/24/92 Obj. Removed 02/20/92 RRC Objection 10/17/91 No Action 12/19/91 No A ction 01/24/92 01/24/92 Effi 03/01/92 RRC Objection 03/19/92 Obj. Removed 03/19/92 RRC Objection 03/19/92 Obj. Removed 03/19/92 RRC Objection 12/19/91 No Action 01/24/92 Obj. Removed 02/20/92 RRC Objection 12/19/91 No Action 01/24/92 Obj. Removed 02/20/92 HUMAN RESOURCES FacUity Services 10 NCAC 3 J .290S - Personal Hygiene Items 10 NCAC 3U .0102 - Defimitions Agency Revised Rule RRC Objection 10; 17/91 RRC Objection 03/19/92 Obj. Removed 03/19/92 Individual and Family Support 10 NCAC42E .090S - Personnel: Centers: Homes with Operator/ Stafifi RRC Objection Agency Responded No Action Agency Raised Rule Obj. Removed 10 NCAC 42E .0906 - Personnel: Day Care Homes:/ Stafifi Person/Op RRC Objection Agency Responded No A ction Agency Revised Rule Obj. Removed 10 NCA C 42E . 1207 - Procedure RRC Objection Agency Responded No Action 01/24/92 02/20/92 03/19/92 01i24!92 02/20/92 03/19/92 01/24/92 02/20/92 7:2 NORTH CAROLINA REGISTER April 15, 1992 146 RRC OBJECTIONS Agency Revised Rule JO XCAC 42Z .0604 - Staff Requirements Agency Responded Agency Re\ised Rule JO XCAC 42Z .090 J - Procedure Agency Responded Agency Revised Rule Mental Health: General JO NCAC J4S .0102 - Communication Rights Agency Responded JO NCAC J4S .0J03 - Living Emironment Agency Responded LICENSING BOARDS AND COMMISSIONS Certiiied Public Accountant Examiners Obj. Removed RRC Objection No A ction Obj. Removed RRC Objection No A ction Obj. Removed 03il9;92 01 1 24 92 02:20.92 03 ,19: 92 0J.24 92 02 20 92 03,19 92 ARRC Objection 9IJ9j9J 10117191 ARRC Objection 9IJ9I9I J0:J7,9J * 2 J NCAC8G .03 J 3 Agency Responded Firm Name RRC Objection 10 17:9 J No Action J2iJ9i9J 147 NORTH CAROLINA REGISTER April 15, 1992 RULES INVALIDA TED BY JUDICIAL DECISION 1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which invalidate a rule in the North Carolina Administrative Code. 25 NCA C IB .0414 - SITU A TIONS LW WHICH A TTORNEYS FEES MA Y BE A WARDED Robert Roosevelt Reilly Jr., Administrative Law Judge with the Office of Administrative Hearings, declared Rule 25 NCAC IB .0414 void as applied in William Paul Fearrington, Petitioner v. University of North Carolina at Chapel Hill, Respondent (91 OSP 0905). 7:2 NORTH CAROLINA REGISTER April 15, 1992 I4S CONTESTED CASE DECISIONS 1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. KEY TO CASE CODES ABC Alcoholic Beverage Control Com- mission BDA Board of Dental Examiners BME Board of Medical Examiners BMS Board of Mortuary Science BOG Board of Geologists BON Board of Nursing BOO Board of Opticians CFA Commission for Auctioneers COM Department of Economic and Com- munity Development CPS Department of Crime Control and Public Safety CSE Child Support Enforcement DAG Department of Agriculture DCC Department of Community Colleges DCR Department of Cultural Resources DCS Distribution Child Support DHR Department of Human Resources DOA Department of Administration DOJ Department of Justice DOL Department of Labor DSA Department of State Auditor DST Department of State Treasurer EDC EUR ESC HAF HRC IND INS LBC MLK NHA OAH OSP PHC POD SOS SPA WRC Department of Public Instruction Department of Environment, Health, and Natural Resources Employment Security Commission Hearing Aid Dealers and Fitters Board Fluman Relations Commission Independent Agencies Department of Insurance Licensing Board for Contractors Milk Commission Board of Nursing Home Administra- tors Office of Administrative Hearings Department of State Personnel Board of Plumbing and Heating Contractors Board of Podiatry' Examiners Department of Secretary of State Board of Examiners of Speech and Language Pathologists and Audiol- ogists Wildlife Resources Commission CASE NAME CASE NLMBER ALJ FILED DATE .\lyce W. Pnngle V. Department of Education 88 OSP 0592 8S EEO 0992 Morgan 03 27 92 Susie Woodle V. Department of Commerce, State Ports Authority 88 OSP 1411 Mann 03 25 92 Fernando Demeco White V. DHR, CasweU Center 89 OSP 0284 West 01 10 92 Cathy Faye Barrow V. DHR, Craven County Heahh Department 89 DHR 0715 Morgan 03 09 92 Kenneth W. White v. Employment Security Commission 90 OSP 0390 Bccton 01 13 92 149 7:2 NORTH CAROLINA REGISTER April 15, 1992 CONTESTED CASE DECISIONS CASE NAME CASE NUMBER AU FILED DATE Craig S. Eury V. Employment Security Commission 90 OSP 0391 Becton 01/1 3; 92 Jolene H. Johnson V. DHR, Division of Medical Assistance 90 DHR 0685 Morgan 02/21/92 Sgt. Carl Edmunds V. DHR, Division of Social Services, CSE 90 CSE 1135 Nesnow 02/04/92 Rafael Figueroa V. DHR, Division of Social Services, CSE 90 CSE 1138 Morgan 03/30/92 Sammie L. Frazier v. DHR, Division of Social Services, CSE 90 CSE 1167 Morgan 03/24/92 Richard A. Boyett v. DHR, Division of Social Services, CSE 90 CSE 1184 Morgan 03/30/92 Lance McQueen v. DHR, Division of Social Services, CSE 90 CSE 1204 Morgan 03/30/92 Kermit Linney V. Department of Correction 90 OSP 1380 Morrison 02/12/92 Jerry Odell Johnson V. Sheriffs' Education & Training Standards Comm 90DOJ 1411 Morgan 01/09/92 Stoney W. & Darlene L. Thompson V. Department of Environment, Health, & Natural Resources 91 EHR 0003 West 01/06/92 Gloria Jones/ Medbill V. Children Special Health Services 91 EHR 0142 Morgan 03/11,92 Thomas Such v. EHR and William W. Cobey Jr. 91 OSP 0202 Becton 02/20/92 N.C. Human Relations Comm. on behalf of Deborah Allen V. Charles Watkins 91 HRC 0204 Morrison 03/17/92 Cindy Gale Hyatt V. Department of Human Resources 91 DHR 0215 Morgan 02/27/92 Gliston L. Morrisey V. Bd of Trustees/Teachers' & St Emp Retirement Sys 91 DST 0232 West 02/03/92 Anthony Caldwell V. Ju\enile Evaluation Center 91 OSP 0259 Morgan 03/12 92 7:2 NORTH CAROLINA REGISTER April 15, 1992 150 CONTESTED CASE DECISIONS CASE NAME C.\SE >LMBER AEJ FILED DATE Kenneth R. Downs, Guardian of Mattie M. Greene V. Teachers' & St Emp Comp Major Medical Plan 91 DST0261 Gray 02/20; 92 Deborah W. Clark V. DHR, Dorothea Dix Hospital 91 OSP 0297 Nesnow 01/16/92 Wade R. Bolton V. DHR, Division of Social Services, CSE 91 CSE 0312 Mann 01/14,92 Betty L. Rader V. Teachers' & St Fmp Major Medical Plan 91 DST0330 Morgan 01/10/92 Marcia Carpenter V. UNC - Charlotte 91 OSP 0346 Mann 03/12,92 James /\rthur Lee V. NC Crime Victims Compensation Commission 91 CPS 0355 Chess 03,05/92 Michael Danvin White V. Department of F.nvironment, Health, & Natural Resources 91 OSP 0413 Morrison 02/14,92 Curtis Wendell Bigelow V. CCPS, Division of State Highway Patrol 91 OSP 0418 West 03,10,92 AlcohoUc Beverage Control Commission V. Hilsinger Pnterprises. Inc., t a The Waterin Hole 91 ABC 0442 Gray 01/10,-92 Penny Whitfield V. ['itt County Mental Health Center 91 OSP 0465 Gray 01/08/92 Senior Citizens' Home Inc. V. DHR. Di%ision of Facility Ser\-ices, Licensure Section 91 DHR 0467 Gray 02,18,-92 Alcoholic Beverage Control Commission V. Everett Lee Williams Jr., t a Poor Boys Gameroom 91 ABC 0531 Morrison 01/31/92 Jonathan Russell McCravey, t a Encore v. .Alcoholic Be\erage Control Commission 91 ABC 0534 Morrison 02/04/92 Horace Bntton Askew Jr. v. Sheriffs' Education & Training Standards Comm 91 DOJ 0610 Reilly 01/22/92 Roy L. Keever V. Department of Correction 91 OSP 0615 West 02,26 92 151 7:2 NORTH CAROLINA REGISTER April 15. 1992 CONTESTED CASE DECISIONS CASE NAME CASE NUMBER AU FILED DATE Larry Madison Chatman, t/a Larry's Convenient Store V. Alcoholic Beverage Control Commission 91 ABC 0626 Gray 02/20/92 Cecil Leon Neal V. Department of Economic & Community Development 91 OSP 0648 Mann 02/07/92 DAG, Food & Drug Protection Div, Pesticide Section v. D. Carroll Vann 91 DAG 0654 Morrison 01/15/92 Kidd's Day Care and Preschool v. Child Day Care Section 91 DHR 0666 Becton 03/25/92 Mary Tisdale Hyde County Health Department and EHR 91 EHR 0679 Morgan 03/23/92 Alcoholic Beverage Control Commission v. Kenneth Richard Cooper, t/a Silvers 91 ABC 0680 Becton 02/26/92 Sarah Linda Hankins V. /VlcohoUc Beverage Control Conunission 91 ABC 0688 Mann 02/27/92 Keith HuU V. DHR - Division of Medical Assistance 91 DHR 0707 Chess 02/27/92 John E. Canup V. DHR, Division of Social Services, CSE 91 CSE 0759 Reilly 01/13/92 Falcon Associates, Inc. v. Department of Environment, Health, & Natural Resources 91 EHR 0767 91 EHR 0768 West 01/06/92 Michael F. Stone v. Bd of Trustees/ Local Gov't Emp Retirement Sys 91 DST 0771 West 02/24/92 Ruben Gene McLean v. Alcoholic Beverage Control Commission 91 ABC 0772 Nesnow 01/30/92 Bobby McEachem v. Fayetteville State University 91 OSP 0839 Gray 02 06/92 Singletree, Inn V. EHR, and Stokes County Health Department 91 EHR 0840 Nesnow 01/16/92 Henry B. Earnhardt V. Mt Pleasant Vol Fire Dept, St Auditor/ Firemen's Rescue Squad Workers' Pension Fund 91 DSA 0843 Reilly 01/29/92 7:2 NORTH CAROLINA REGISTER April 15, 1992 152 CONTESTED CASE DECISIONS CASE NAME CASE NUMBER ALJ FILED DATE Mackey L. Hall V. DMR. Division of Social Senices, CSE 91 CSE 0854 Reilly 01,17,92 Kay Long V. Department of Human Resources 91 DHR 0873 Reilly 03,17,92 Alcoholic Beverage Control Commission V. Mack Ray Chapman, ta Ponderosa I ounge 91 ABC 0887 .Morrison 01 ,'31, '92 Joseph W. Devlin Jr., Johnson Brothers Carolina Dist V. Alcoholic Beverage Control Commission 91 ABC 0890 West 02,11/92 Ossie Beard V. FHR & Wastewater Treatment Plant Certification Comm. 91 EHR 0893 Nesnow 03,12/92 .Alcoholic Beverage Control Commission V. Trinity C. C, Inc., t /a Trinity College Cafe 91 ABC 0915 West 02,T1,'92 N.C. /Vlcohohc Beverage Control Commission v. Jessie Pendergraft Rigsbee. T/A Club 2000 91 ABC 0919 West 03,T2,'92 .Vlcoholic Beverage Control Commission v. Cedric Warren Edwards, t a Great, American Food Store 91 ABC 0923 Becton 0226,92 Department of Environment, Health, & Natural Resources V. Hull's Sandwich Shop, Andy Hull 91 EHR 0936 West OL 09/92 Betty Davis d b a ABC Academy v. DHR, Division of Facility Services, Child Day Care Section 91 DHR 0955 Morrison 01 31 92 Thomas J. Hailey V. EHR and Rockingham County Health Department 91 EHR 0957 Becton 0115 92 Ronald Waverly Jackson V. EHR. Division of .Maternal & Child Health. WIC Section 91 EHR 0963 Gray 02 24 92 Century Care of Eaurinburg, Inc. V. DHR, Di\ision of Facility Sen.ices, Licensure Section 91 DHR 0981 Gray 03 24 92 Roy Shcaley V. \'ictims Compensation Commission 91 CPS 1002 Morrison 01 31 92 Willie Brad Baldwin l^HR, Division of Social Services, CSE 91 CSE 1020 Reilly 01 28 92 Clinton Dawson \. N.C. Department of Transportation 91 OSP 1021 Mann 03 05 92 I5i 7:2 NORTH CAROLINA REGISTER April 15, 1992 CONTESTED CASE DECISIONS CASE NAME CASE NUMBER ALJ FILED DATE Benjamin C. Dawson V. Department of Correction 91 OSP 1025 West 02/18/92 Paulette R. Smith V. DHR, Division of Social Services, CSE 91 CSE 1026 ReiUy 02/27/92 Scot Dawson V. Department of Labor 91 DOE 1031 West 02/24/92 Luis A. Rosario V. DHR, Division of Social Services, CSE 91 CSE 1046 Morrison 03/03/92 Randy Quinton King V. CCPS, State Highway Patrol 91 OSP 1064 Gray 03/24/92 WiUiam H. Hogsed V. DHR, Division of Social Services, CSE 91 CSE 1070 Nesnow 03/16/92 David L. Brown v. DHR, Division of Social Services, CSE 91 CSE 1074 Morrison 03/31/92 Donald M. Washington V. DHR, Division of Social Services, CSE 91 CSE 1078 Morrison 03/04/92 Melvin L. Miller Sr. v. DHR, Division of Social Ser\'ices, CSE 91 CSE 1084 Morrison 03/16/92 Bobby G. Evans V. DHR, Division of Social Services, CSE 91 CSE 1094 Reilly 01/13/92 William Louis Timmons V. DHR, Division of Social Services, CSE 91 CSE 1104 Mann 02/18/92 Raymond Junior Cagle V. DHR, Division of Social Services, CSE 91 CSE 1-123 Mann 03/30/92 Richard E. Murray V. Department of Human Resources 91 CSE 1134 Reilly 01/13/92 Pathia Miller V. DHR, Division of Facihty Services, Child Day Care Section 91 DHR 1135 Mann 03/31/92 Atlantic Enterprises, Inc. V. Department of Environment, Health, & Natural Resources 91 EHR 1136 Reilly 01/23/92 Theresa M. Sparrow v. Criminal Justice Education & Training Standards Comm 91 DOJ 1138 Mann 02/04/92 7:2 NORTH CAROLINA REGISTER April 15, 1992 154 CONTESTED CASE DECISIONS CASE NAME CASE NLMBER ALJ FILED DATE Darrel D. Shields V. DHR, Division of Social Senices, CSE 91 CSE 1141 Morgan 03 30 92 James A. Hinson V. DHR, Division of Social Senices, CSE 91 CSE 1154 .Mann 02,18,92 George H. Parks Jr. V. DHR, Division of Social Services, CSE 91 CSE 1157 .Morrison 01/27/92 Adrian Chandler Harley V. DHR, Division of Social Services, CSE 91 CSE 1180 Nesnow 02; 10/92 Billy J. HaU V. DHR, Division of Social Ser\ices. CSE 91 CSE 1182 Nesnow 02,10/92 Donaldson L. Wooten V. DHR, Di%ision of Social Ser\ices, CSE 91 CSE 1189 Reilly 03/13 92 WiUiam P. Reid V. DHR, Division of Social Services, CSE 91 CSE 1193 Nesnow 02,04 92 Ronald G. Bolden V. DHR, Division of Social Services, CSE 91 CSE 1208 Gray 02 26 '92 \\'a\ne Phillip Irb> V. DHR. Di\ision of Social Services, CSE 91 CSE 1211 Nesnow 02 04 92 Tony HoUingsworth V. DHR, Division of Social Services, CSE 91 CSE 1212 Nesnow 02,10/92 Russell G. Ginn v. Department of Correction 91 OSP 1224 Reilly 02 14 92 /Vngela .McDonald .McDougald v. DHR, Di\ision of Social Services, CSE 91 CSE 1227 Nesnow 02 28/92 Sering O. .\Ibye V. DHR, Di\ision of Social Scr\ices. CSE 91 CSE 1228 Mann 03 11,92 .-Vrthur Thomas McDonald Jr. DHR, Division of Social Sen.ices, CSE 91 CSE 1252 Morrison 03 31 92 Stanford Earl Rem v. DHR. Dnision of Social Senices, CSE 91 CSI-; 1255 Nesnow 02 04 92 Gene \\'ea\er V. DHR. Di\ision of Social Senices, CSE 91 CSE 12M Reilly 03 25 92 155 7:2 NORTH CAROLINA REGISTER April 15, 1992 CONTESTED CASE DECISIONS CASE NAME CASE NUMBER ALJ FILED DATE James T, White V. DHR, Division of Social Services, CSE 91 CSE 1271 Gray 02/27/92 Ronald Brown and Regina Brown V. DFIR, Division of Facility Services 91 DHR 1278 Becton 02/25/92 Samuel /Vrmwood V. David Brantley, Wayne County Clerk of Superior Court 91 CSE 1285 Reilly 02/11/92 Raymond Vaughan V. DHR, Division of Social Services, CSE 91 CSE 1304 Reilly 03/09/92 Stanley Wayne Gibbs v. Elizabeth City State University 91 OSP 1318 Gray 01/14/92 David Martin Strode V. DHR, Division of Social Services, CSE 91 CSE 1327 Morgan 03/19/92 Steveason M. Bailey V. McDowell Technical Community College 91 OSP 1353 Morrison 01/28/92 Gary N. Rhoda V. Department of Correction 91 OSP 1361 Nesnow 01/31/92 William A. SeUers V. DHR, Division of Social Services, CSE 91 CSE 1395 Gray 04/01/92 Marc D. Walker V, CCPS, Division of State Highway Patrol 91 OSP 1399 Morrison 03/16/92 Serena Gaynor V. DHR, Division of Vocational Rehabilitation 91 OSP 1403 Gray 03/02/92 Betty Davis, D, B A ABC Academy V. DHR, Division of Facility Ser\ices. Child Day Care Section 91 DHR 1408 Chess 03/30/92 Charles R. WeUons II V. Department of Environment, Health, & Natural Resources 91 EHR 1418 West 02/25/92 Charley Joe Milligan V. Bd of Trustees,' I X)cal Govt Emp Retirement Sys 91 DST 1424 Gray 02/27/92 Roy Blalock, Deborah Eakms, John Gordon Wright V. UNC - Chapel Hill 91 OSP 1429 91 OSP 1430 Gray 03/13/92 7:2 NORTH CAROLINA REGISTER April 15, 1992 156 CONTESTED CASE DECISIONS CASE NAME CASE NUMBER AU FILED DATE New Bern-Craven County Board of Fiducation, a Statutory Corporation of North Carolina V. The Honorable Harlan E. Boyles, State Treasurer, The Honorable Fred W. Talton, State Controller, The Honorable William W. Cobey, Jr., Sec. of EHR, Dr. George T. E\erett, Dir., Div. of En\ironmcntal Mgmt. 92 EHR 0003 Reilly 03/13/92 Pnvate Protective Services Board V. Robert R. MissLldine, Jr. 92 DOJ 0025 Becton 03/23/92 Cindy G. Bartlett V. Department of Correction 92 OSP 0029 ReiUy 03/16/92 Kurt Hafner V. N.C. Retirement System et al. 92 DST 0094 Gray 03/04/92 Roy Blalock, Deborah Eakins, John Gordon Wright V. LNC - Chapel Hill 92 OSP 0096 Gray 03/13/92 Youth locus. Inc. (MID # 239-23-0865T) V. DHR, Division of Medical Assistance 92 DHR 0110 Gray 02/26/92 15: 7:2 NORTH CAROLINA REGISTER April 15, 1992 CONTESTED CASE DECISIONS STATE OF NORTH CAROLINA COUNTY OF CUMBERLAND IN THE OFFICE OF ADMINISTRATIVE HEARINGS 91 DHR 0666 KIDD'S DAY CARE AND PRESCHOOL, Petitioner CHILD DAY CARE SECTION, Respondent RECOMMENDED DECISION This matter is before the undersigned administrative law judge on motion by the Respondent for an order granting summary judgment in its favor. APPEARANCES Petitioner: Pro se. Respondent: Jennie JarrelJ Hayman, Assistant Attorney General, Department of Justice, Raleigh, North Carolina ISSUE Whether the Child Day Care Section of the Department of Human Resources erred when it issued a written reprimand to the Petitioner for allegedly leaving children unattended in the day care center's van. SUMMARY OF UNDISPUTED FACTS Kidd's Day Care and Preschool, the Petitioner in the matter, is a child day center operated by Ms. Marian Kidd and located in Fayetteville, North Carohna. The Petitioner is licensed by the Re- spondent, Child Day Care Section, Division of laciLity Services, Department of Human Resources, to operate a child day care center. On April 29, 1991, the Respondent received a report alleging child neglect at Kidd's Day Care and Preschool. The report alleged that day care children were left unattended on the Petitioner's van with the engine running while the driver left the van. Glenda Holmes, the van driver, recalls one incident when she drove the van to the front of the day care center building to pick up a child at the front door of the center. Ms. Holmes got out of the van in order to assist the child in boarding the van. She left the engine running and other school age chil- dren inside the van wtule she walked around the front of the van and took approximately nine steps away from the van so that she could assist the child leaving the building board the van. After helping the child through the van's side door and securing the child's seat belt, .Ms. Holmes walked around the front of the van and returned to the driver's seat. .Ms. Holmes was able to maintain visual contact with the van and the children on board the van at all times during the boarding process. 7:2 NORTH CAROLINA REGISTER April 15, 1992 158 COXTESTED CASE DECISIONS On May 31, 1991, a written reprimand was issued to the Petitioner due to an alleged violation of 10 NCAC 3U .1003(h) which provides that "Children shall ne\'er be left in a vehicle unattended by an adult." CONCl.l SIGNS OF L.WV 1. At issue in this contested case is the meaning of the term "unattended." The term "unattended" is not defined in the Administrative Code. The Respondent contends that "unattended" means that an adult must be inside the vehicle with the children at all times. The Petitioner, on the other hand, contends that "unattended" means lack of \isual contact with the children being supervised. 2. One of the principles of statutory or regulatory construction is that words should be given their plain and ordmary meaning. Webster's TTiird New International Dictionary 1961, defines "unat- tended" as follows: (1) Not attended; a. lacking a guard, escort, caretaker or other watcher. b. lacking people in attendance. (2) Unaccompanied; (3) a. not cared for: untended. b. not watched with care, attentiveness or accuracy. The focus of the definitions found in Webster's appears to be on proximity and attentiveness (visual contact coupled with the ability to react appropriately to what one observes). 4. In Pmvon v. Settle. 263 N.C. 578, 139 S.E.2d 863 (1965), the court held that leaving a motor (sic) \ehicle "unattended" means leaving it without any one present who is competent to prevent any of the probable dangers to the public. Pin von, however, only addresses the question of when a \chicle is unattended. The Court did not consider the issue of whether the child in the vehicle was unattended. By way of analogy, one might argue that leaving a chdd without any one present who is competent to prevent any of the probable dangers that might occur to the child constitutes lea\mg the child unattended. This definition is similar to the focus on proximity and attentiveness found in the definitions for unattended in Webster's. 5. Applying the definitions of unattended found in Webster's to the facts in this case, one can con- clude that since Ms. Holmes was in close proximity to both the children and the vehicle, the children in the \an were not without a caretaker or other watcher; they were not unaccompanied; and they were not without someone to care for them. The fact that the person supervising them did not remain inside the van with them at all times does not necessarily mean that the children were not watched with care, attentiveness or accuracy. TTiere are no facts indicating that the children were not closely watched. 6. The children were not unattended merely because the adult responsible for super, ising them was not physically inside the vehicle with them. Ordinanly, an adult outside a vehicle should be able to respond to what ever circumstances develop as long as the person is attenti\e and within a reasonable distance of the vehicle. 7. A reasonable interpretation of "unattended" in the regulation involved in this case is that an adult must be in close enough proximity to the children to maintain \isual contact and to react to whatever probable needs or emergencies that might arise. 8. The \'an driver was able to maintain visual contact with the children in the van. and nine steps away from the van is not so unreasonable a distance that one would not expect the driver to be able to react to whatever probable needs or emergencies that could occur. 159 7:2 NORTH CAROLINA REGISTER April 15, 1992 CONTESTED CASE DECISIONS 9. The fact that it might not have been wise or prudent of the driver to leave the keys in the ignition and the van running while she was assisting a child to board is a separate issue from that of whether the children were unattended. 10. If it was the intent of the regulation in question to require that an adult remain inside the vehicle rather than to attentively supervise the children, then the regulation could have and should have specifically said that when children are in a vehicle, an adult must remain inside the vehicle with the children. The term "unattended" does not mean that one can never leave the vehicle while there are children in it. 1 1 . The respondent erred when it issued the May 31, 1 99 1 written reprimand to the Petitioner. 12. The Respondent is not entitled to summary judgment in its favor. 13. The Petitioner is entitled to summary judgment in its favor. RECOMMRNDED DECISION The Department of Human Resources will make the Final Decision in this contested case. It is recommended that the agency adopt the Findings of Fact and Conclusions of Law set forth above and enter summary judgment in favor of the Petitioner and rescind the May 31, 1991 written reprimand directed to the Petitioner. ORDER It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Adminis- trative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statutes section 150B-36(b). NOTICE Before the agency makes the FINAL DECISION, it is required by North Carolina General Stat- utes section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those in the agency who will make the fmal decision. The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy of the Final Decision on all parties and to furnish a copy to the Parties' attorney of record. This the 25th day of March, 1992. Brenda B. Becton Administrative Law Judge 7:2 NORTH CAROLINA REGISTER April 15, 1992 160 CONTESTED CASE DECISIONS STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COLNTY OF SCOTLAND 91 DHR 0981 CENTURY CARE OF LAURINBLRG, INC., ) Petitioner ) ) NORTH CAROLINA DEPARTMENT OF ) HLMAN RESOURCES, DIVISION OF ) FACILITY SERVICES, LICENSURE SECTION, ) Respondent ) ) ) RECOMMENDED DECISION This contested case came on for hearing before the undersigned on March 17, 1992, on the Motion of Petitioner Century Care of Laurinburg, Inc. ("Century Care"), for a recommended decision in the nature of summary disposition. Appearing on behalf of the Petitioner were Robert V. Bode, S. Todd Hemphill, and Diana E. Ricketts, of the law firm of Bode Call & Green. Appearing on behalf of the Respondent North Carolina Department of Human Resources, Division of Facility Services, Licensure Section (the "Agency") was Amy A. Barnes, Associate Attorney General, North Carolina Department of Justice. At issue in Petitioner's Motion is the composition of the Agency's Penalty Review Committee, which recommended the assessment of the penalty which is the subject of this contested case. Petitioner contends that the Penalty Review Committee was not properly constituted because, contrary to the requirements of G.S. § 143B-10(d), the majority of the members of the Committee reside in the same congressional district. ISSUE WTiether there is any genuine issue as to any material fact and whether any party is entitled to summary disposition as a matter of law. BURDEN OF PROOF The moving party has the burden of establishing that there is no genuine issue as to any material fact and that it is entitled to summary disposition as a matter of law. I NDISPUTED FACTS Based on the uncontroverted evidence appearing of record, to which consideration mav be given under G.S. § 150B-33(3a), 26 NCAC 3.0001, 3.0005(6), and Rule 56, N.C.R.Civ.P., mc'luding the pleadings, affidavits and discover,' submitted, and ha\ing considered the legal memoranda submitted by the parties and the oral argument of .March 17, 1992, the undersigned has concluded that there is no genuine issue as to any material fact and makes the following fmds of undisputed, material fact: 1. The Penalty Review Committee established by the Agency recommended that the penalty which is the subject of this contested case hearing be assessed against Petitioner. 2. The penalty was assessed by letter dated September 24, 1991, from Lynda D. McDaniel, Chief of the Licensure Section, to Noah Duncan, Administrator, Century Care of Laurinburg. 3. Petitioner timely appealed the assessment of that penalty to the Office of Administrative Hcarinas. 4. G.S, § 143B-in(d) provides as foUows: 161 7:2 NORTH CAROLINA REGISTER April 15, 1992 CO IS TEST ED CASE DECISIONS (d) Appointment of Committees or Councih. - The head of each principal department may create and appoint committees or councils to consult with and advise the department. The General Assembly declares its policy that insofar as feasible, such committees or councils shall consist of no more than 1 1 members, with not more than one from each congressional district. If any department head desires to vary this pohcy, he must make a request in writing to the Governor, stating the reasons for the request. The Governor may approve the request, but may only do so in writing. Copies of the request and approval shall be transmitted to the Advisory Budget Commission and the Joint Legislative Com- mission on governmental Operations. The members of any committee or council created by the head of a principal department shall serve at the pleasure of the head of the principal department and may be paid per diem and necessary travel and subsistence expenses with the provisions of G.S. 138-5, when approved in advance by the Director of the Budget. Per diem, travel, and subsistence payments to members of the committees or councils cre- ated in connection with federal programs shall be paid from federal funds unless otherwise provided by law. An armual report listing these committees or councils, the total membership on each, the cost in the last 12 months and the source of funding, and the title of the person who made the appointments shall be made to the Advisory budget Commission and the Joint Legis- lative Commission on Governmental Of>erations by March 31, of each year. Prior to taking any action under this subsection, the Director of the Budget may consult with the Advisory Budget Commission. 5. G.S. § 131D-34(h) provides as follows; (h) The Secretary shall establish a penalty review committee within the Department, which shaU review administrative penalties assessed pursuant to this section and pursuant to G.S. 13 IE- 129. The Secretary shall ensure that departmental staff review of local departments of social services' penalty recommendations along with prepared staff recommendations for the penalty review committee are completed within 60 days of receipt of the Department of the local recommendations. The Penalty Review Committee shall not review penalty recommendations agreed to by the Department and the long-term care facility for Type B violations except those violations that have been previously cited against the long-term care facility during the previous 12 months or within the time period of the previous hcensure inspection, whichever time period is longer. TTie Secretary shall ensure that the Nursing Home/Rest Home Penalty Review Conmiittee estabhshed by this subsection is comprised of nine members. At least one member shall be appointed from each of the following categories: (1) A licensed pharmacist; (2) A registered nurse experienced in long-term care; (3) A representative of a nursing home; (4) A representative of a domiciliary home; and (5) A public member. Neither the pharmacist, nurse, nor pubUc member appointed under this subsection nor any member of their immediate families shaU be employed by or own interest in a nursing home or domiciliary home. Each member of the Committee shall serve a term of two years. The initial terms of the members shaO commence on August 3, 1989. The Secretary shall fill all vacancies. Lln- excused absences from three consecutive meetings constitute resignation from the Com- mittee. 7:2 NORTH CAROLINA REGISTER April 15, 1992 162 CO\TESTED CASE DECISIONS 6. G.S. § 13 IE- 129(g) provides as follows: (g) The penalty review committee established pursuant to G.S. 131D-34(h) shall review administrative penalties assessed pursuant to this section, provided, however, that the Pen- alty Review Committee shall not review penalty recommendations agreed to by the De- partment and the long-term care facility for Type B violations except those violations that have been previously cited against the long-term care facihty during the previous 12 months, or within the time period of the previous Hcensure inspection whichever time period is longer. 7. The Penalty Review Committee which recommended the penalty against Petitioner was comprised of nine members, more than one of whom were residents of the 4th congressional District. 8. The Agency has never requested in writing to the Governor approval for the membership of the Penalty Review Committee to be comprised of more than one member from any congressional district. 9. The Governor has never approved, in writing, a request by the Department to include more than one member from one congressional district on the Penalty Review Committee. 10. The Agency established the Penalty Review Committee by DUR Directive Number 40, which was issued by the Secretary of the Department of Human Resources, and which has been made a part of this admimstrative record. 11. DHR Du-ective Number 40 cites G.S. §§ 143B-10, 131D-34 and 131E-129 m the beginning of the Directive as authority. 12. DHR Directive Number 40 specifically cites G.S. § 143B- 10(d) as authority for the payment of per diem and necessary travel and other expenses for members of the Penalty Review Committee. 13. The Agency listed the Penalty Review Committee as one of the committees of the Division of Facility Services in its 1990 and 1991 reports to the Advisory Budget Commission. Based upon the foregoing facts, the undersigned makes the following; CONCLl SIONS OF LAW 1. There is no genuine issue of material fact and. based upon the statutes quoted above. G.S. §§ 143B-10(d). 131D-34(h), and 131E-129(g), the Petitioner, Century Care of Louisburg, Inc. is entitled to summaPv' disposition as a matter of law. 2. The Agency was required to comply with G.S. § 143B- 10(d) in establishing the Penalty Review Committee. 3. The .Agency failed to comply with G.S. § 143B- 10(d) because more than one member of the Penalty Re\iew Committee was from the 4th Congressional District, and because the Agency never requested of or received from the Governor approval for a variance from this requirement. 4. In ordering payment of a penalty based upon the recommendation of an improperly constituted Penalty Review Committee, the .Agency exceeded it authority, acted erroneously, failed to use proper procedure, and failed to act as required by law. G.S. § 150B-23(a)(l), (2), (3) and (5). DISCI SSION The .Agency argues that G.S. § 143B- 10(d) has no apphcation to the Penalty Re\iew Committee, because there is separate statutory" authority for the creation of the Penalty Review Committee in G.S. 163 7:2 NORTH CAROLINA REGISTER April 15, 1992 CONTESTED CASE DECISIONS § 131D-34(h) which specifically established and sets guidelines for the membership of the Committee. The Agency further argues that, as G.S. § 131D- 34(h) was enacted later in time than G.S. § 143B- 10(d), to the extent there are any conflicts between the statutes, the later-enacted and more specific statute regarding the Penalty Review Committee should take precedence, the undersigned disagrees with these arguments for two reasons. First, the Secretary of the Department of Human Resources has cited as authority in the beginning of DHR Directive Number 40, which was made a part of this administrative record by both parties, G.S. §§ 131D-34, 131E-129, and 143B-10(d). Additionally, the Secretary cites G.S. § 143B- 10(d) in the Directive as authority for payment to members of the Committee of per diem and travel expenses. Additionally, the Agency has admitted that it submitted information to the Advisory Budget Com- mission of the State Budget Office regarding the Penalty Review Committee. The statutory authority requiring such admission is G.S. § 143B- 10(b), and the Agency has cited no other statutory authority requiring its submission of this information to the Advisory Budget Commission. Thus, the Agency clearly has relied upon G.S. § 143B- 10(d) in creation and administration of the Penalty Review Com- mittee and contemplated that G.S. § 143B- 10(d) apphes at least in some respects to the Penalty Review Committee. However, the Agency does not have the authority to take advantage of some of the pro- visions of the statute while ignoring others. Second, upon review the three statutes quoted hereinabove, the undersigned finds no conflict be- tween their provisions, and holds that the Agency must comply with all of them in forming the Penalty Review Committee and in assessing penalties. Ihe proper construction of different statutory provisions deahng with the same subject is to harmonize those statutes if possible. The three statutes simply do • not conflict with each other, because the requirements of each can be achieved without doing violence to the requirements of the others. Specifically, G.S. § 143B- 10(d) requires that department conmiittees be comprised of no more than 1 1 members, with no two members residing in the same congressional district. G.S. § 131D-34(h) re- quires that the Penalty Review Committee be comprised of 9 members, five of whom must be ap- pointed from certain specific categories. Notably, these latter five statutorily required members of the Penalty Review Committee were each from different congressional districts. The Agency has not claimed or made any showing that it could not have similarly appointed the remaining four members from different congressional districts. Moreover, if the Agency wished to depart from the provisions of G.S. § 143B- 10(d) regarding the residences of the Penalty Review Committee members, the statute provides a ready remedy. The Secretary' may apply in writing to the Governor to vary this policy, and the Governor may approve such variance in writing. However, the Agency has admitted that it has never even considered this al- ternative. Based on the foregoing, the undersigned concludes that the Penalty Review Committee was im- properly comprised because it consisted of more than one member from one congressional district contrary to the requirements under G.S. § 143B- 10(d). The next question which must be answered is what effect this conclusion has upon the penalty which was assessed upon Century Care by the Agency. G.S. §§ 131D-34(h) and 131E-129(g) answer this question. Both statutes are mandatory, in requiring that the Penalty Review Committee be es- tablished to review administrative penalties assessed by the Agency. If a properly constituted Penalty Review Committee has not reviewed the penalties prior to their assessment against the facihty, then the Agency has not followed proper procedure in assessing the penalty. There can be no valid penalty unless the procedure has been followed. DKCISION Therefore, the undersigned recommends that Petitioner's Motion for Summary Disposition be granted, on the grounds that the Penalty Review Committee which recommended the penalty was improperly constituted in contravention of the statutor)' requirement, and that the assessment of the 7:2 NORTH CAROLINA REGISTER April 15, 1992 164 CONTESTED CASE DEClSIOyS penalty was therefore made in excess of statutory authority, upon improper procedure, erroneously and contrar)' to law. Accordingly, Petitioner's Motion for a Recommended Decision in the Nature of SurrLmar>' Dis- position is granted and it is recommended that the penalty assessed against Petitioner be vacated. NOTICE The Agency making the fmal decision in this contested case is required to give each party an op- portunity to fde exceptions to this recommended decision and to present written arguments to those in the agency who will make the fmal decision. N.C. Gen. Stat. § 150B-36(a). The Secretary^ of the North Carolina Department of Human Resources or his designee will make the fmal decision in this contested case. This the 24th day of March, 1992. Beecher R. Gray Administrative Law Judge 165 7:2 NORTH CAROLINA REGISTER April 15, 1992 CONTESTED CASE DECISIONS STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF DLPLIN 91 OSP 1064 RANDY QL'INTON KING, ) Petitioner ) ) NORTH CAROLINA DEPARTMENT OF ) CRIME CONTROL AND PLBLIC SAFETY, ) STATE HIGHWAY PATROL, ) Respondent ) ) ) RECOMMENDED DECISION This matter was heard before Beecher R. Gray, administrative law judge, on February 1 1-14, 1992 in Raleigh, North Carolina. At the close of the evidence, the parties made oral closing arguments and elected not to order transcripts or to file written proposals and arguments. APPEARANCES Petitioner: John P. Edwards, Jr., Esq. Respondent: Joseph P. Dugdale, Esq. ISSUE Whether Respondent had just cause to terminate Petitioner's employment on August 5, 1991 for reasons of improper personal conduct. FINDINGS OF FACT 1 . The parties received notices of hearing by certified mail more than 1 5 days prior to the hearing and so stipulated on the record. 2. The parties further stipulated on the record that Petitioner was a permanent state employee under Chapter 126 of the General Statutes of North Carolina at the time of his dismissal. 3. Petitioner was married to Tamela Marion King in June, 1986. Tamela King had two daughters by a previous marriage, both of whom lived with her and Petitioner as of June 1, 1991. 4. Petitioner was employed by Respondent as a State Highway Patrol Trooper for more than 10 years. He served in the Patrol in various locations within the State. As of June 1, 1991, Petitioner and his wife Tamela King resided in Faison, North Carolina with his stepdaughters Candice Brooks Murphy (Brooks) and LaShea Murphy (Shea). 5. Prior to June 1, 1991, Petitioner and Tamela King had developed marital diificulties and were discussing a separation. They had agreed that Petitioner should obtain a separation agreement from his attorney. Petitioner's attorney prepared a separation agreement signed by Petitioner. Tamela King had picked up and brought home a copy of the separation agreement from Petitioner's attorney's office so that it could be reviewed by her attorney prior to her signing it. 6. On the night of May 31, 1991, Brooks Murphy participated in a dance recital. Tamela King's mother and father were in Petitioner's house on that day. Petitioner did not want to discuss the pending separation agreement with them so he did not attend the dance recital and did not stay in his house that night. Instead, he drove to the beach to fish and did not return to his house in Faison until sometime between 7:00 p.m. and 8:00 p.m. on June 1, 1991. 7:2 NORTH CAROLINA REGISTER April 15, 1992 166 COST EST ED CASE DECISIONS 1. WHien Petitioner arrived home, Tamela King was asleep in the bed they shared in the master bedroom. Shea Murphy was asleep in her bedroom and Brooks Murphy was watching television in a room directly across the hall from the master bedroom where her mother was asleep. Neither Brooks' door nor the master bedroom door was completely closed. 8. Upon Petitioner's entering the master bedroom, Tamela King woke up. The couple engaged in some conversation about the proposed separation agreement. The parties were experiencing marital discord and the conversation was not light and pleasant. The conversation did not escalate into shouts. As Petitioner continued with the con\ersation, he discovered a note left on the dresser for him by his mother-in-law, Doris Marion. "The note commented on the couple's marital problems and particularly expressed Doris .Marion's disagreement with the separation agreement that Petitioner had obtained from his lawyer. 9. As the conversation was continuing, Petitioner was in the process of laying out his State Highway Patrol uniform for work the ne.xt morning. During this process, he handled his shirt, socks, shoes, pants, pens and other shirt paraphemalia, ;md his 9mm sidearm. Petitioner left the sidearm on top of or in the top drawer of the dresser which was near the foot of the bed and shghtly to one side. \Miile Petitioner was preparing his uniform and he and Tamela King were earning on the con- versation, Brooks Murphy came into, or started to come into, the master bedroom. She did not come all the way into the room and returned to her own room just across the hallway. 10. Petitioner got into the bed at about 8:00-8:15 p.m. Shortly thereafter, Tamela King got out of the bed and left the room. 1 1. When Tamela King left the master bedroom, she stopped by Brooks' room and instructed her to get into the car because they were going to lea\e. Tamela King did not say anvthing to Shea Murphy who was asleep in her bedroom at the time. Tamela King did not take Shea Murphy with her when she left the house. WTien Tamela King took her daughter Brooks .Murphy and left the famil\' home on the night of June 1, 1^^91, she forgot that she also had an older daughter. Shea Murphy, who was asleep in her bedroom. About an hour later Tamela King, in response to a question from Faison magistrate Vema Taylor, remembered that she had an older daughter named Shea Murphy who was stiU in the house asleep. At magistrate Taylor's suggestion, and having her memory refreshed. Tamela King returned to the King household and removed her daughter Shea -Murphy. 12. Upon leaving the King household on the night of June 1. 1991 at about 8:15 p.m., Tamela King stopped at a pay phone and telephoned her attorney Carolyn Ingram at home. Carolyn Ingram ad\ised her to call Faison magistrate Vema Taylor and to try to see her about getting a warrant. Tamela King told Carolyn Ingram that Petitioner had pointed his pistol at her during the con\er- sation in the master bedroom saying "I ouglit to shoot \'ou." 13. WTien Tamela King telephoned Vema Taylor, she was cPiing and upset. Vema Taylor instructed her to drive to magistrate Taylor's house, where she maintained an office. Upon Tamela King s arrival, magistrate Taylor observed that she was emotionally distrauglit but not fearful of Petitioner. \'ema Taylor observed some redness and slight swelling on Tamela King's hand be- tween her thumb and foretlnger, the location where she reported to magistrate Taylor that Petitioner had pinched her. Taniela King also told magistrate Taylor that Petitioner did not strike her but had placed his fist against her jaw and apphed some pressure. 14. After the initial inteniew, Tamela King left magistrate Taylor's presence to go outside with Faison pohceman Wade Wheless for a smoke break. Brooks Murphy accompanied her mother during the outside smoke break. When Tamela Kmg returned inside to magistrate Taylor, she informed the madstrate that Petitioner also had pointed his pistol at her and stated that he ouaht to shoot her. 15. Mxqx Tamela King, Wade Wheless, and Brooks Murphy came back inside Vema Taylor's house, magistrate Taylor asked Brooks Murphy what she had seen. Brooks stated that she had started 167 7:2 NORTH CAROLiyA REGISTER April 15, 1992 CONTESTED CASE DECISIONS into the master bedroom but had gotten scared and returned to her own room. She did not state to magistrate Taylor that she had seen a gun. 16. After Tamela King went back to the King household and brought Shea Murphy out, she and Shea returned to magistrate Taylor's house. Tamela King told Shea during the drive back to the magistrate's house that Petitioner had pointed a gun at her and held his fist to her face. While at the magistrate's house, Shea asked her sister Brooks what she had seen or heard in the master bedroom while Petitioner and her mom were in it earlier in the evening. Brooks told Shea that she had heard the words "I ought to" but had not seen a gun. Shea Murphy and her stepmother Sandra Murphy later asked Brooks if she had seen a gun on the night of June 1, 1991 during the incident between Petitioner and her mother in the master bedroom. Brooks stated to Shea at that time that she had not seen a gun but that her mother Tamela King had told her to tell Doris Marion, Brooks' matemal grandmother, that she had seen a gun. 17. Magistrate Vema Taylor issued two warrants for Petitioner on the night of June 1, 1991. One warrant was for assault on a female and one was for communicating a threat. Petitioner was ar- rested at his Faison home on the night of June 1, 1991. After his arrest and while the household was vacant, Tamela King retumed and packed her bags and departed Faison with her daughters. 18. Petitioner was tried and convicted upon his plea of not guilty in District Court for Duplin County on July 18, 1991 on charges of assault on a female and assault by pointing a gun. The charge of communicating a threat was dismissed by the district attorney. Petitioner gave timely notice of appeal to Superior Court for a trial de novo. Before the trial date in Superior Court, the district attorney took a voluntary dismissal of all charges against Petitioner. On August 5, 1991, Petitioner was dismissed from the State Highway Patrol on the basis of assault on a female and assault by pointing a gun. 19. Brooks Murphy did not testify in the criminal trial in Duplin County on July 18, 1991. Re- spondent did not interview either Brooks or Shea Murphy during its investigation of the events of June 1, 1991. Tamela King informed Lt. W. M. Autry, Internal Affairs Investigator for Re- spondent, that Brooks had come into the master bedroom while Petitioner had his pistol pointed at her. Respondent attempted to interview Brooks Murphy, a purported eyewitness, but was not allowed to do so by Brooks' mother Tamela King. Brooks Murphy has remained in the custody of Tamela King since June 1, 1991. Shea Murphy remained in the custody of Tamela King from June 1, 1991 until a court order awarded custody to her father, Milton Murphy, on November 17, 1991. 20. Brooks Murphy was called as a witness by Respondent in this contested case hearing. Brooks was nine years old on June 1, 1991 and had become ten years old by the time of this hearing. Brooks .Murphy was very emotional and exJiibited a high level of anxiety during her testimony. When she attempted to testify about whether she had seen Petitioner point a gun at her mother, she broke down and could not continue. After a bench conference and agreement between counsel, the hearing room was cleared of all persons except counsel for each party, the court re- porter, and the administrative law judge. Tamela King resisted the request to leave the room. Upon being requested for a second time to leave the room, she stated loudly to her daughter. Brooks Murphy, that ''I will not let them hurt you." This statement was not intended, nor did it have, a calming effect on Brooks Murphy. 21. Brooks Murphy did manage to testify after the hearing room was cleared and she had time to settle down. She was particularly emotionally sensitive when asked to give answers to questions about whether she had seen Petitioner pointing a gun at her mother. 22. Brooks Murphy's testimony in this contested case hearing cannot be regarded as trustworthy. The content of her testimony, her demeanor, and the inconsistent statements she made to Shea Murphy and to Vema Taylor, compel a finding that her testimony lacks the indicia of credibility necessary to support findings of fact based upon it. 7:2 NORTH CAROLINA REGISTER April 15, 1992 I6S C0.\ TESTED CASE DECISIOSS 23. Brooks Murphy, Shea Murphy, and Tamela King all share an opinion that Petitioner was a good father to the two girls and a good husband. 24. Tamela King was called as a material, critical witness by Respondent. Respondent's case against Petitioner is based upon the statements of Tamela King. As a witness Tamela King was evasive and nonresponsive in her answers. She tended to launch into speeches and to answer questions by discussing matters not inquired about by the question. She repeatedly had to be instructed to give responsive answers. The demeanor of Tamela King was not reflective of a person who understands the solemn obligations of the oath to tell the truth and proceeds to do so. The totahty of her testimony and the demeanor she exhibited during its recitation compel a fmding that her testimony lacks the credibility requisite to basing fmdings of fact upon it. 25. Se\enteen (17) witnesses testified in this case in the form of reputation or opinion under G.S. 8C-1 Rule 60S(a) as to the character of Tamela Kmg for truthfulness or untruthfulness. Thirteen (13) of the seventeen witnesses gave reputation or opinion evidence that Tamela King is an untruthful person or that she is an untruthful person some of the time. Notable among those who so testified were Jo.\rm \\'agoner, a personal confidant of Tamela King's mother, Doris Marion, and who has known Tamela King for 20 years or more; Doris .Marion; and Tamela King's 13 year old daughter, Shea Murphy. CONCLUSIONS OF I AW Based upon the foregoing findings of fact, I make the following conclusions of law. 1 . The parties are properly before the Office of .Administrative Hearings. 2. Respondent has the burden of showing by a preponderance of substantial evidence that Petitioner engaged in the conduct with which he has been charged and that such conduct constitutes just cause to terminate the constitutionally protected interest he holds in continued employment by Respondent. Respondent's evidence in this contested case does not carr>" the burden of showing by a preponderance of substantial evidence that on June 1, 1991 Petitioner assaulted his wife, Tamela King, by pointing a pistol at her, by pushing his list against her jaw, or apphing pressure to her hand. 3. Respondent has failed to establish by a prepxjnderance of substantial evidence that Petitioner s testimony in defense of assault charges brought by Tamela King in Duplin County District Court on July 18, 1991 brought his personal and professional credibility into disrepute and impaired the reputation of the Highway Patrol. RECOMMENDED DECISION Based upon the foregomg fmdings of fact and conclusions of law, it is hereby recommended that Respondent's decision to terminate the employment of Petitioner Randy Quinton King on August 5, 1991 for improper personal conduct be reversed for lack of just cause. It is recommended that Petitioner be reinstated to the position he held prior to this termination; that he receive back pay from the date of his termination to the date of his reinstatement; that he receive reasonable attorney's fees and costs; and that he recehe all other benefits to which he would have become entitled but for this Ln\oluntar," separation on .August 5. 1991. ORDER It is hereby ordered that the agency ser^e a copy of the final decision on the Office of .Adminis- trathe Hearings, P.O. Draper 27447, Raleigh. N.C. 27611-^447, in accordance with North CaroUna General Statute 150B-36(b). NOTICE 169 7:2 NORTH CAROLINA REGISTER April 15, 1992 CONTESTED CASE DECISIONS TTie agency making the final decision in this contested case is required to give each party an op- portunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36(a). The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the State Personnel Com- mission. This the 24th day of March, 1992 Beecher R. Gray Administrative Law Judge 7:2 NORTH CAROLINA REGISTER April 15, 1992 170 NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICATION SYSTEM Th he Xorth Carolina Administrative Code (.\CACj has four major subdivisions of ndes. Two of these, titles and chapters, are mandatory. The major subdivision of the XCAC is the title. Each major department in the .Xorth Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. The other nvo, subchapters and sections are optional subdivisions to be used by agencies when appropriate. TITLE/MAJOR DFV ISIONS OF THE NORTH CAROEINA ADMIMSTRATn E CODE riTLE DEPARTMENT LICENSESG BOARDS CHAPTER 1 Administration Architecture 2 2 Agriculture Auctioneers 4 3 Auditor Barber Examiners 6 4 Economic and Community Certified Public Accountant Examiners 8 Development Chiropractic Examiners 10 5 Correction General Contractors 12 6 Council of State Cosmetic Art Examiners 14 7 Cultural Resources Dental Examiners 16 8 Elections Dietetics Nutrition 17 9 Governor Electrical Contractors 18 10 Human Resources Electrolysis 19 11 Insurance Foresters 20 12 Justice Geologists 21 13 Labor Hearing Aid Dealers and Fitters 22 14A Crime Control and Public Safety Landscape Architects 26 15A Environment, Health, and Natural Landscape Contractors 28 Resources Martial & Famil}- Therapy 31 16 Public Education Medical Examiners 32 17 Revenue Midwifen,- Joint Committee 33 18 Secretary of State Mortuar,- Science 34 19A Transportation Nursing 36 20 Treasurer Nursing Home Administrators 37 *21 Occupational Licensing Boards Occupational Therapists 38 22 Administrative Procedures Opticians 40 23 Community Colleges Optometr\- 42 24 Independent Agencies Osteopathic Examination and 44 25 State Personnel Registration (Repealed) 26 Administrative Llearings Pharmacy 46 Physical Therapy Examiners 48 Plumbing. Heating and Fire Sprinkler 50 Contractors Podiatn,' Examiners 52 Practicing Counselors 53 Practicmg Psychologists 54 Professional Engineers and Land Sur\c>ors 56 Real Estate Commission 5S Refrigeration Examiners 60 Sanitanan Examiners 62 Social Work e:^ Speech and Language Pathologists and 64 Audiologists Veterinarv' Medical Board 66 Note: Title 21 contains the chapters of the various occupational Licensing boards. /"/ NOR TH CAR OLINA R EG IS TER .April 15, 1 992 CUMULA TIVE INDEX CUMULA TIVE INDEX (April 1992 - March 1993) 1992 - 1993 Pages Issue 1 - 105 1 - April 106 - 173 2 - April AO - Administrative Order AG - Attorney General's Opinions C - Correction FR - Final Rule GS - General Statute JO - Judicial Orders or Decision M - Miscellaneous NP - Notice of Petitions PR - Proposed Rule SO - Statements of Organization TR - Temporar> Rule ADMrMSTRATION Auxiliary' Services, 4 PR ENMRONMEN T, HEALTH, AND NATURAL RESOURCES Health: Epidemiology, 140 PR Health Ser\ices, 52 PR NPDES Permits Notices, 1, 107 Radiation Protection, 136 PR Wildlife Resources Commission, 28 PR, 133 PR FINAL DECISION LETTERS Voting Rights Act, 106 HUMAN RESOURCES Aging, Division of, 121 PR Day Care Rules, 123 PR Economic Opportunity, 5 PR Facility Services, 1 11 PR Medical Assistance, 4 PR Mental Health, Developmental Disabilities and Substance Abuse Services, 1 1 1 PR INSURANCE Consumer Services Division, 125 PR Departmental Rules, 7 PR Engineering and Building Codes, 19 PR Fire and Rescue Services Division, 17 PR Hearings Division, 124 PR Life and Health Division, 22 PR Property and Casualty Division, 20 PR 7:2 NORTH CAROLINA REGISTER April 15, 1992 172 CUMULA TIVE INDEX Seniors' Health Insurance Information Program, 132 PR JISTICE Alarm Systems Licensing Board, 27 PR LICENSING BOARDS Electrolysis Examiners, Board of, 69 PR LIST OF RULES CODIFIED List of Rules Codified, 72 TRANSPORTATION Motor Vehicles, Division of, 68 PR, 142 PR 173 7:2 NORTH CAROLINA REGISTER April 15, 1992 NORTH CAROLINA ADMINISTRATIVE CODE The full publication consists of 53 volumes, totaling in excess of 15,000 pages. 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