This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 21 ● ISSUE 18 ● Pages 1616 - 1684
March 15, 2007
I. PROPOSED RULES
Environment and Natural Resources, Department of
Environmental Management Commission.......................................................1618 – 1620
Labor
Department ......................................................................................................1616 – 1618
State Personnel, Office of
State Personnel ................................................................................................1620 – 1623
II. CONTESTED CASE DECISIONS
Index to ALJ Decisions.......................................................................................1609 – 1615
Text of ALJ Decisions
06 DHR 0810...................................................................................................1632 – 1642
06 DHR 1412...................................................................................................1643 – 1647
03 OSP 0822....................................................................................................1648 – 1652
05 OSP 1527....................................................................................................1653 – 1676
06 OSP 0007....................................................................................................1676 – 1681
06 SOS 1329....................................................................................................1682 – 1684
PUBLISHED BY
The Office of Administrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
Julian Mann, III, Director
Camille Winston, Deputy Director
Molly Masich, Codifier of Rules
Dana Sholes, Publications Coordinator
Julie Edwards, Editorial Assistant
Felicia Williams, Editorial Assistant
Lisa Johnson, RRC Admin. Assistant
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the
agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
Capehart-Crocker House (919) 733-2678
424 North Blount Street (919) 733-3462 FAX
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Codifier of Rules molly.masich@ncmail.net (919) 733-3367
Dana Sholes, Publications Coordinator dana.sholes@ncmail.net (919) 733-2679
Julie Edwards, Editorial Assistant julie.edwards@ncmail.net (919) 733-2696
Felicia Williams, Editorial Assistant felicia.williams@ncmail.net (919) 733-3361
Rule Review and Legal Issues
Rules Review Commission
1307 Glenwood Ave., Suite 159 (919) 733-2721
Raleigh, North Carolina 27605 (919) 733-9415 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@ncmail.net
Bobby Bryan, Commission Counsel bobby.bryan@ncmail.net
Lisa Johnson, Administrative Assistant lisa.johnson@ncmail.net
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 733-7061
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
contact: Nathan Knuffman nathan.knuffman@ncmail.net
Governor’s Review
Reuben Young reuben.young@ncmail.net
Legal Counsel to the Governor (919) 733-5811
116 West Jones Street
Raleigh, North Carolina 27603
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney karenc@ncleg.net
Jeff Hudson, Staff Attorney jeffreyh@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn jim.blackburn@ncacc.org
Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Anita Watkins awatkins@nclm.org
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2007 – December 2007
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
(first legislative
day of the next
regular session)
270th day from publication
in the Register
21:13 01/02/07 12/07/06 01/17/07 03/05/07 03/20/07 05/01/07 05/08 09/29/07
21:14 01/16/07 12/20/06 01/31/07 03/19/07 03/20/07 05/01/07 05/08 10/13/07
21:15 02/01/07 01/10/07 02/16/07 04/02/07 04/20/07 06/01/07 05/08 10/29/07
21:16 02/15/07 01/25/07 03/02/07 04/16/07 04/20/07 06/01/07 05/08 11/12/07
21:17 03/01/07 02/08/07 03/16/07 04/30/07 05/21/07 07/01/07 05/08 11/26/07
21:18 03/15/07 02/22/07 03/30/07 05/14/07 05/21/07 07/01/07 05/08 12/10/07
21:19 04/02/07 03/12/07 04/17/07 06/01/07 06/20/07 08/01/07 05/08 12/28/07
21:20 04/16/07 03/23/07 05/01/07 06/15/07 06/20/07 08/01/07 05/08 01/11/08
21:21 05/01/07 04/10/07 05/16/07 07/02/07 07/20/07 09/01/07 05/08 01/26/08
21:22 05/15/07 04/24/07 05/30/07 07/16/07 07/20/07 09/01/07 05/08 02/09/08
21:23 06/01/07 05/10/07 06/16/07 07/31/07 08/20/07 10/01/07 05/08 02/26/08
21:24 06/15/07 05/24/07 06/30/07 08/14/07 08/20/07 10/01/07 05/08 03/11/08
22:01 0702/07 06/11/07 07/17/07 08/31/07 09/20/07 11/01/07 05/08 03/28/08
22:02 07/16/07 06/22/07 07/31/07 09/14/07 09/20/07 11/01/07 05/08 04/11/08
22:03 08/01/07 07/11/07 08/16/07 10/01/07 10/22/07 12/01/07 05/08 04/27/08
22:04 08/15/07 07/25/07 08/30/07 10/15/07 10/22/07 12/01/07 05/08 05/11/08
22:05 09/04/07 08/13/07 09/19/07 11/05/07 11/20/07 01/01/08 05/08 05/31/08
22:06 09/17/07 08/24/07 10/02/07 11/16/07 11/20/07 01/01/08 05/08 06/13/08
22:07 10/01/07 09/10/07 10/16/07 11/30/07 12/20/07 02/01/08 05/08 06/27/08
22:08 10/15/07 09/24/07 10/30/07 12/14/07 12/20/07 02/01/08 05/08 07/11/08
22:09 11/01/07 10/11/07 11/16/07 12/31/07 01/21/08 03/01/08 05/08 07/28/08
22:10 11/15/07 10/25/07 11/30/07 01/14/08 01/21/08 03/01/08 05/08 08/11/08
22:11 12/03/07 11/08/07 12/18/07 02/01/08 02/20/08 04/01/08 05/08 08/29/08
22:12 12/17/07 11/26/07 01/01/08 02/15/08 02/20/08 04/01/08 05/08 09/12/08
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
PROPOSED RULES
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1616
Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency
must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a
later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published
notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60
days.
Statutory reference: G.S. 150B-21.2.
TITLE 13 – DEPARTMENT OF LABOR
Notice is hereby given in accordance with G.S. 150B-21.2 that
the North Carolina Department of Labor intends to adopt the
rule cited as 13 NCAC 15 .0706 and amend the rule cited as 13
NCAC 15 .0306.
Proposed Effective Date: July 1, 2007
Public Hearing:
Date: April 4, 2007
Time: 10:00 a.m.
Location: 4 West Edenton Street, Raleigh, NC, Room 205
Reason for Proposed Action: Pursuant to G.S. 95-110.6, the
Commissioner of Labor has the authority to "refuse to issue,
renew or may revoke, suspend or amend a certificate of
operation" when the rules promulgated under the Elevator
Safety Act have not been complied with. Additionally, pursuant
to 95-110.5, the Commissioner of Labor has the authority to
"establish fees not to exceed two hundred dollars ($200.00) for
the inspection and issuance of certificates of operation for all
devices and equipment" subject to the Elevator Safety Act "upon
installation or alteration, for each follow up inspection, and for
the annual periodic inspections thereafter." The Elevator and
Amusement Device Bureau is a 100% fee supported Bureau that
relies upon timely payment of elevator inspection invoices. Due
to the extreme number of outstanding invoices, it is necessary
and in the best interest of the Bureau that those persons who do
not make timely payment for an elevator inspection have their
Certificate of Operation revoked and be subject to a
reinstatement fee prior to reissuance of the certificate. The
amendment of 13 NCAC 15 .0306 clarifies under what
conditions a Certificate may be revoked and the requirements
for reissuance. The adoption of 13 NCAC 15 .0706 establishes
the fee to be charged for reinstatement.
Procedure by which a person can object to the agency on a
proposed rule: Objections to the proposed rules may be
submitted, in writing, to Erin T. Gould, Assistant Rulemaking
Coordinator, via United States mail at the following address:
1101 Mail Service Center, Raleigh, North Carolina 27699-1101;
or via facsimile at (919) 733-4235. Objections may also be
submitted during the public hearing conducted on these rules,
which are noticed above. Objections shall included the specific
rule citation(s) for the objectionable rule(s), the nature of the
objection(s), and the complete name(s) and contact information
for the individual(s) submitting the objection. Objections must
be received by 5:00 p.m. on May 14, 2007.
Comments may be submitted to: Erin T. Gould, 1101 Mail
Service Center, Raleigh, NC 27699-1101, phone (919) 733-
7885, fax (919) 733-4235, email erin.gould@nclabor.com
Comment period ends: May 14, 2007
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact: A copy of the fiscal note can be obtained from
the agency.
State
Local
Substantive (>$3,000,000)
None
CHAPTER 15 - ELEVATOR AND AMUSEMENT DEVICE
DIVISION
SECTION .0300 - ELEVATORS AND RELATED
EQUIPMENT
13 NCAC 15 .0306 CERTIFICATES OF
OPERATION
(a) Issuing of Final Certificates of Operation. A certificate of
operation shall be issued by the Director where the inspections
and tests, required by Rule .0305 of this Section, show beyond a
reasonable doubt that the equipment has been designed and
installed in accordance with the requirements of these rules.
(b) Framing of Certificates. The certificate furnished by the
Director shall be maintained in a suitable frame under
transparent cover.
(c) Numbering of Certificates. The final certificate of operation
shall show the registration number of the equipment for which it
is issued, as required in Rule .0304 of this Section.
(d) Posting of Certificates of Operation. The required
certificates shall be posted conspicuously as follows:
PROPOSED RULES
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1617
(1) inside elevator cars, or
(2) inside dumbwaiter cars, or
(3) inside escalator and moving walk machine
rooms, or
(4) in locations designated by the Division.
(e) Limited Certificate of Operation.
(1) Issuance for Elevator. The Director may allow
the temporary use of any elevator for
passenger or freight service during its
installation or alteration under the authority of
a limited certificate, issued for each class of
service. Such limited certificate shall not be
issued for elevators until the elevator has been
tested with rated load, and the car safety,
hoistway door interlocks, car door switch, and
terminal stopping devices have been tested to
determine the safety of the equipment for
construction purposes.
(2) Issuance for Personnel Hoist. The Director
may allow the temporary use of any personnel
hoist under the authority of a limited
certificate. Such limited certificate shall not
be issued until the personnel hoist has been
tested with rated load, and the car safety,
hoistway door interlocks, car door switch, and
terminal stopping devices have been tested to
determine the safety of the equipment.
(3) Life of Limited Certificates of Operation.
Limited certificates of operation may in the
case of an elevator be issued for a period not to
exceed 90 days. Limited certificates of
operation for a personnel hoist may be used for
a period not exceeding the length of the
applicable construction project. Such
certificates may be renewed at the discretion
of the Director upon receiving a written
request showing justifiable cause for renewal.
Such request must be received 15 days prior to
the expiration of said limited certificate.
(4) Posting of Limited Certificates of Operation.
Limited certificates of operation shall be
posted conspicuously on each elevator or
personnel hoist. Such limited certificates for
elevators shall bear a notice stating that the
equipment has not been finally approved.
(f) Revocation of Certificate of Operation.
(1) The Director may revoke a certificate of
operation for any of the following reasons:
(a) Operation of an unsafe device or
equipment which is likely to result in
personal injury or property damage.
(b) Failure to comply with the provisions
of Article 14A of Chapter 95 of the
North Carolina General Statutes or
the rules in this Chapter.
(c) Non-payment of the inspection fees
established in 13 NCAC 15 .0702 if
payment is not received within 30
days of the date of invoice.
(2) If the Director revokes a certificate of
operation pursuant to 13 NCAC 15
.0306(f)(1), the affected party shall be given
notice of the availability of an administrative
hearing and of judicial review in accordance
with Article 3 of Chapter 150B of the N.C.
General Statutes.
(g) Reinstatement of Revoked Certificate of Operation.
(1) If the Director revokes a certificate of
operation pursuant to 13 NCAC 15
.0306(f)(1)(a), the owner or operator shall
notify the Director in writing when the hazard
has been abated and shall request a
reinspection of the device or equipment. Once
the Director or his assignee has conducted the
requested reinspection and has determined that
the hazard has been abated and the device may
be operated safely, the certificate of operation
shall be reissued upon payment of the
inspection fee pursuant to 13 NCAC 15 .0702
and the reinstatement fee pursuant to 13
NCAC 15 .0706. Payment of the applicable
fees shall be made in accordance with 13
NCAC 15 .0306(g)(4).
(2) If the Director revokes a certificate of
operation pursuant to 13 NCAC 15
.0306(f)(1)(b), the owner or operator shall
notify the Director in writing when the
provisions of Article 14A of Chapter 95 of the
North Carolina General Statutes and the rules
in this Chapter have been satisfied. Once the
Director or his assignee has conducted the
requested reinspection and determined that the
provisions of Article 14A of Chapter 95 of the
North Carolina General Statutes and rules of
this Chapter have been satisfied, the certificate
of operation shall be reissued upon payment of
the inspection fee pursuant to 13 NCAC 15
.0702 and the reinstatement fee pursuant to 13
NCAC 15 .0706. Payment of the applicable
fees shall be made in accordance with 13
NCAC 15 .0306(g)(4).
(3) If the Director revokes a certificate of
operation pursuant to 13 NCAC 15
.0306(f)(1)(c), upon payment of the original
inspection fee pursuant to 13 NCAC 15 .0702
and the reinstatement fee pursuant to 13
NCAC 15 .0706, the certificate of operation
shall be reissued. Payment of the applicable
fees shall be made in accordance with 13
NCAC 15 .0306(g)(4).
(4) Payment of the fees referenced in this Rule
shall be made by credit card, certified check,
bank check or money order payable to the
North Carolina Department of Labor. The
owner shall notify the Division in writing
when payment has been made.
Authority G.S. 95-110.5; 95-110.6.
PROPOSED RULES
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1618
SECTION .0700 – FEES
13 NCAC 15 .0706 ELEVATOR CERTIFICATE OF
OPERATION REINSTATEMENT FEE
If a certificate of operation is revoked pursuant to 13 NCAC 15
.0306, a reinstatement fee of two hundred dollars ($200.00) shall
be paid, in addition to all overdue inspection fees, prior to
reinstatement of the certificate of operation.
Authority G.S. 95-107; 95-110.5; 95-110.6.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Environmental Management Commission intends to amend
the rule cited as 15A NCAC 02R .0402 with changes from the
proposed text noticed in the Register, Volume 21, Issue 12,
pages 1087-1088.
Proposed Effective Date: September 1, 2007
Reason for Proposed Action: In accordance with the
Administrative Procedures Act, the Environmental Management
Commission (EMC) is re-publishing proposed revisions to the
rule establishing the schedule of fees for the Ecosystem
Enhancement Program to accept comments for an additional 60
days. This re-publication is required as a result of substantial
changes made to the text of the original proposed rule, which
was published in the December 15, 2006 edition of the North
Carolina Register. Based on comments received after the
original publication, two proposed versions of rule text are
being published for comment. Each of these proposals is
substantially different than the original version published in that
fees are being proposed to apply to the entire state (single flat
fee) or to be applied based on watershed boundaries (two
separate fees for different parts of the state). Please be aware
that as a result of this re-publication and the comments received,
the EMC may modify the fees proposed as well as how separate
fees are applied to different parts of the state. The EMC may
adopt either of the two rule revision options published in this
notice.
Procedure by which a person can object to the agency on a
proposed rule: All persons interested and potentially affected
by the proposal are strongly encouraged to read this entire
notice and make comments. The EMC may not adopt a rule that
differs substantially from the text of the proposed rule published
in this notice unless the EMC publishes the text of the proposed
different rule and accepts comments on the new text (see
General Statute 150B-21.2(g)). Written comments may be
submitted to Suzanne Klimek of the Ecosystem Enhancement
Program at the postal address, e-mail address, or fax number
listed in this notice.
Written comments may be submitted to: Suzanne Klimek,
1652 Mail Service Center, Raleigh, NC 27699-1652, phone
(919) 715-1835, fax (919) 715-2219, email
suzanne.klimek@ncmail.net
Comment period ends: May 15, 2007
Procedure for Subjecting a Proposed Rule to Legislative
Review: Any person who objects to the adoption of a permanent
rule may submit written comments to the agency. A person may
also submit written objections to the Rules Review Commission.
If the Rules Review Commission receives written and signed
objections in accordance with G.S. 150B-21.3(b2) from 10 or
more persons clearly requesting review by the legislature and the
Rules Review Commission approves the rule, the rule will
become effective as provided in G.S. 150B-21.3(b1). The
Commission will receive written objections until 5:00 p.m. on
the 6th business day preceding the end of the month in which a
rule is approved. The Commission will receive those objections
by mail, delivery service, hand delivery, or facsimile
transmission. If you have any further questions concerning the
submission of objections to the Commission, please call a
Commission staff attorney at 919-733-2721.
Fiscal Impact: A copy of the fiscal note can be obtained
from the agency.
State
Local
Substantive (>$3,000,000)
None
CHAPTER 02 - ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 02R - WETLANDS RESTORATION
PROGRAM
SECTION .0400 - WETLANDS RESTORATION FUND
15A NCAC 02R .0402 SCHEDULE OF FEES
OPTION 1:
(a) The amount of payment into the Fund necessary to achieve
compliance with compensatory mitigation requirements shall be
determined in accordance with Subparagraphs (1) through (3) of
this Paragraph. The fee shall be based on the acres and types of
compensatory mitigation specified in the approved certifications
issued by the Department under 33 USC 1341; and permits or
authorizations issued by the United States Army Corps of
Engineers under 33 USC 1344. Payments shall be rounded up in
increments of linear feet for streams and in 0.25 acre increments
for wetlands, e.g. for streams, 520.3 linear feet of compensatory
mitigation would be considered as 521 feet, and for wetlands,
2.35 acres of required compensatory mitigation would be
considered as 2.5 acres for the purpose of calculating the amount
of payment. Fees will be assessed according to mitigation type
as follows:
(1) Classified surface waters other than wetlands
as defined in 15A NCAC 02B .0202. The
payment shall be two hundred dollars
PROPOSED RULES
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1619
($200.00) three hundred dollars ($300.00) per
linear foot of stream
(2) Class WL wetlands as defined in 15A NCAC
02B .0101(c)(8). The payment shall be:
(A) Twelve thousand dollars ($12,000.00)
Thirty-two thousand four hundred
and fifty dollars ($32,450) per acre
for non-riparian wetlands.
(B) Twenty four thousand dollars
($24,000.00) Fifty-seven thousand
seven hundred and twenty-five
dollars ($57,725) per acre for riparian
wetlands.
(3) Class SWL wetlands as defined in 15A NCAC
02B .0101(d)(4). The payment shall be one
hundred twenty thousand dollars
($120,000.00) one hundred forty-six thousand
six hundred and fifteen dollars ($146,615) per
acre.
(b) The fees outlined in Subparagraphs (a)(1) through (a)(3) and
Paragraph (d) of this Rule shall be reviewed annually by the
Department and compared to the actual cost of restoration
activities conducted by the Department, including planning,
monitoring and maintenance costs. Based upon this annual
review, revisions to Paragraph (a) of this Rule shall be
recommended to the Commission when adjustments to this
Schedule of Fees are deemed necessary to ensure that the
Schedule of Fees reflects the actual costs of restoration
activities.
(c) The fees outlined in Subparagraphs (a)(1) through (a)(3) and
Paragraph (d) of this Rule shall be adjusted for inflation on an
annual basis using the Civil Works Construction Cost Index
System published by the US Army Corps of Engineers. This
adjustment shall occur at the end of each calendar year as
follows: the fees in Subparagraphs (a)(1) through (a)(3) and
Paragraph (d) of this Rule for each year shall be multiplied by
the annual composite Civil Works Construction Cost Index
yearly percentage change issued in September of each year and
the result shall be the increase to that fee for the next fiscal year.
The revised fees shall be made available via the NC Wetland
Restoration Ecosystem Enhancement Program's web site
(h2o.enr.state.nc.us/wrp/index.htm) (www.nceep.net) and
become effective on the following July 1st. The first adjustment
shall be made at the close of calendar year 2003 to become
effective July 1, 2004. This process shall continue annually
thereafter.
(d) For properties and easements donated to the NC Wetlands
Restoration Program,Department of Environment and Natural
Resources, a fee of three hundred fifty dollars ($350.00) one
thousand dollars ($1,000) per acre shall be charged at the time
the land or easement is transferred to the program Department's
Conservation Grant Fund Endowment to cover costs of long-term
management of the property. For properties that are less
than one acre in size, the minimum payment shall be one
thousand dollars ($1,000). This charge applies only to properties
and easements donated to the program Department for the sole
purpose of property or easement maintenance. This does not
apply to properties or easements donated to the program
Department in association with restoration projects conducted by
the program.Department.
OPTION 2:
(a) The amount of payment into the Fund necessary to achieve
compliance with compensatory mitigation requirements shall be
determined in accordance with Subparagraphs (1) through (3)(7)
of this Paragraph. The fee shall be based on the acres and types
of compensatory mitigation specified in the approved
certifications issued by the Department u n d e r 33 USC 1341;
and permits or authorizations issued by the United States Army
Corps of Engineers under 33 USC 1344. Payments shall be
rounded up in increments of linear feet for streams and in 0.25
acre increments for wetlands, e.g. for streams, 520.3 linear feet
of compensatory mitigation would be considered as 521 feet,
and for wetlands, 2.35 acres of required compensatory
mitigation would be considered as 2.5 acres for the purpose of
calculating the amount of payment.
(b) Payments made pursuant to Subparagraphs (3) through (6)
of this Paragraph shall be subject to separate fees determined by
which eight-digit hydrologic unit (as defined by the United
States Geological Survey) the permitted impact is located. Fees
will be assessed according to the location of the permitted
impact and mitigation type as follows:
(1) Fees in Subparagraphs (3) and (4) shall be
applied to the following eight digit hydrologic
units organized by river basin: Broad:
03050105; Cape Fear: 03030002, 03030004,
03030005, 03030007; Catawba: 03050101,
03050102, 03050103; French Broad:
06010106, 06010105, 06010108; Hiwassee:
06020002; Little Tennessee: 06010202,
06010203, 06010204; Neuse: 03020201; New:
05050001; Roanoke: 03010107; Savannah:
03060101, 03060102; Tar-Pamlico: 03020101;
Watauga: 06010103; White Oak: 03030001,
03020106; Yadkin: 03040102, 03040103,
03040105, 03040202
(2) Fees in Subparagraphs (5) and (6) of this
Paragraph shall be applied to all other eight
digit hydrologic units not listed in
Subparagraph (1) of this Paragraph.
(1)(3) Classified surface waters other than wetlands
as defined in 15A NCAC 02B .0202. The
payment shall be two hundred dollars
($200.00) three hundred and twenty-three
dollars ($323.00) per linear foot of stream.
(2)(4) Class WL wetlands as defined in 15A NCAC
02B .0101(c)(8). The payment shall be:
(A) Twelve thousand dollars ($12,000.00)
Forty-three thousand dollars
($43,000) per acre for non-riparian
wetlands.
(B) Twenty four thousand dollars
($24,000.00) Fifty-nine thousand and
six hundred dollars ($59,600) per acre
for riparian wetlands.
(5) Classified surface waters other than wetlands
as defined in 15A NCAC 02B .0202. The
PROPOSED RULES
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1620
payment shall be two hundred and forty-four
dollars ($244.00) per linear foot of stream.
(6) Class WL wetlands as defined in 15A NCAC
02B .0101(c)(8). The payment shall be:
(A) Twenty-two thousand one hundred
and thirteen dollars ($22,113) per
acre for non-riparian wetlands.
(B) Thirty-three thousand six hundred
and ninety-six ($33,696) per acre for
riparian wetlands.
(3)(7) Class SWL wetlands as defined in 15A NCAC
02B .0101(d)(4). The payment shall be one
hundred twenty thousand dollars
($120,000.00) one hundred forty-six thousand
six hundred and fifteen dollars ($146,615) per
acre.
(b)(c) The fees outlined in Subparagraphs (a)(1) (b)(1) through
(a)(3) (b)(7) and Paragraph (d) (e) of this Rule shall be reviewed
annually by the Department and compared to the actual cost of
restoration activities conducted by the Department, including
planning, monitoring and maintenance costs. Based upon this
annual review, revisions to Paragraph (a) of this Rule shall be
recommended to the Commission when adjustments to this
Schedule of Fees are deemed necessary to ensure that the
Schedule of Fees reflects the actual costs of restoration
activities.
(c)(d) The fees outlined in Subparagraphs (a)(1) (b)(1) through
(a)(3) (b)(7) and Paragraph (e) of this Rule shall be adjusted for
inflation on an annual basis using the Civil Works Construction
Cost Index System published by the US Army Corps of
Engineers. This adjustment shall occur at the end of each
calendar year as follows: the fees in Subparagraphs (a)(1) (b)(1)
through (a)(3) (b)(7) and Paragraph (d) (e) of this Rule for each
year shall be multiplied by the annual composite Civil Works
Construction Cost Index yearly percentage change issued in
September of each year and the result shall be the increase to
that fee for the next fiscal year. The revised fees shall be made
available via the NC Wetland Restoration Ecosystem
Enhancement Program's web site
(h2o.enr.state.nc.us/wrp/index.htm) (www.nceep.net) and
become effective on the following July 1st. The first adjustment
shall be made at the close of calendar year 2003 to become
effective July 1, 2004. This process shall continue annually
thereafter.
(d)(e) For properties and easements donated to the NC Wetlands
Restoration Program,Department of Environment and Natural
Resources, a fee of three hundred fifty dollars ($350.00) one
thousand dollars ($1,000) per acre shall be charged at the time
the land or easement is transferred to the program Department's
Conservation Grant Fund Endowment to cover costs of long-term
management of the property. For properties that are less
than one acre in size, the minimum payment shall be one
thousand dollars ($1,000). This charge applies only to properties
and easements donated to the program Department for the sole
purpose of property or easement maintenance. This does not
apply to properties or easements donated to the program
Department in association with restoration projects conducted by
the program.Department.
Authority G.S. 143-214.11; 143-214.12; 143-215.3.
TITLE 25 – DEPARTMENT OF STATE PERSONNEL
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Personnel Commission intends to adopt the rules cited
as 25 NCAC 01O .0102 - .0106, amend the rule cited as 25
NCAC 01O .0101, and repeal the rules cited as 25 NCAC 01O
.0201 - .0206.
Proposed Effective Date: September 1, 2007
Public Hearing:
Date: May 2, 2007
Time: 10:00 a.m.
Location: 116 West Jones Street, Raleigh, NC, Office of State
Personnel Conference Room, Administration Bldg., 3rd floor
Reason for Proposed Action: The current performance
management system has been in place, with minimal changes,
for 17 years. In this time, HR professional practices have
evolved. The proposed revision is intended to allow greater
flexibility in how the performance management process is
conducted in the agencies while retaining the requirements
established in GS 126-7. To that end, the rules contain less
prescriptive detail and encourage agencies to design their
performance management systems around the nature of the work
being managed and the increasingly results-oriented nature of
today's workplaces.
Procedure by which a person can object to the agency on a
proposed rule: A person may object to these proposed rules by
one of the following methods: a written letter to Peggy Oliver,
HR Policy Administrator, Office of State Personnel, 1331 Mail
Service Center, Raleigh, NC 27699-1331; an email to
peggy.oliver@ncmail.net; a telephone call to Peggy Oliver at
(919) 807-4832.
Comments may be submitted to: Peggy Oliver, Office of State
Personnel, 1331 Mail Service Center, Raleigh, NC 27699-1331,
email peggy.oliver@ncmail.net
Comment period ends: May 14, 2007
Procedure for Subjecting a Proposed Rule to Legislative
Review: If an objection is not resolved prior to the adoption of
the rule, a person may also submit written objections to the
Rules Review Commission. If the Rules Review Commission
receives written and signed objections in accordance with G.S.
150B-21.3(b2) from 10 or more persons clearly requesting
review by the legislature and the Rules Review Commission
approves the rule, the rule will become effective as provided in
G.S. 150B-21.3(b1). The Commission will receive written
objections until 5:00 p.m. on the day following the day the
Commission approves the rule. The Commission will receive
those objections by mail, delivery service, hand delivery, or
facsimile transmission. If you have any further questions
PROPOSED RULES
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1621
concerning the submission of objections to the Commission,
please call a Commission staff attorney at 919-733-2721.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 01 - OFFICE OF STATE PERSONNEL
SUBCHAPTER 01O - PERFORMANCE MANAGEMENT
SYSTEM
SECTION .0100 - GENERAL PROVISIONS
25 NCAC 01O .0101 POLICY
(a) Top management within each agency shall initiate and
maintain an operative Performance Management System that
maximizes the utilization of the knowledge, skills, abilities and
behaviors of its employees through a understanding of the
relationship between an employee's work assignments and the
mission and goals of the agency.
(b) This system shall be based on the importance of two-way,
continuous communication between supervisors and employees
to determine job responsibilities, performance requirements,
accomplishments, and areas for improvement in meeting job
requirements. It shall ensure that all employees:
(1) are aware of what is expected of them,
(2) are provided with continuous feedback about
their performance,
(3) are provided with opportunities for education,
training and development, and
(4) are rewarded in a fair and equitable manner.
(c) Each agency shall have a system for managing performance
with a twofold purpose:
(1) Establishing, monitoring, and evaluating
organizational goals, and
(2) Establishing individual expectations.
(d) This system shall address establishing individual
expectations. Once organizational goals are established and
communicated, individual expectations shall be set based on
these goals so that each employee understands and can relate
assigned duties to the agency's mission and goals.
Each agency shall have an operative performance management
system that has been approved by the State Personnel
Commission.
(1) The State Personnel Director shall help
agencies establish and administer their
performance management systems.
(2) The State Personnel Director shall review and
approve any substantive changes to, or
variations in, an agency's performance
management system.
Authority G.S. 126-4; 126-7.
25 NCAC 01O .0102 PURPOSE
The purposes of the performance management system are to
ensure that:
(1) Employees have clear performance
expectations;
(2) The work employees perform contributes to
getting the work of the agency accomplished;
(3) Employees receive ongoing information about
how effectively they are performing relative to
expectations;
(4) Awards and salary increases based on
individual performance are distributed fairly;
(5) Opportunities for employee development are
identified; and
(6) Individual performance that does not meet
expectations is addressed
Authority G.S. 126-4; 126-7.
25 NCAC 01O .0103 COMPONENTS OF A
PERFORMANCE MANAGEMENT SYSTEM
An operative performance management system shall consist of:
(1) A process for communicating individual
performance expectations, maintaining
ongoing performance dialogue, and
conducting annual performance appraisals;
(2) A procedure for addressing individual
performance that falls below expectations;
(3) A procedure for encouraging and facilitating
individual development;
(4) Training in managing performance and
administering the system; and
(5) A procedure for resolving performance pay
disputes
Authority G.S. 126-4; 126-7.
25 NCAC 01O .0104 RATING SCALE
The annual performance appraisal shall use a 5-level rating scale
for reporting overall performance. A rating at the midpoint of
the scale shall indicate that an individual's performance has met
expectations. Alternative rating scales are permissible, provided
they are convertible to a 5-level scale and are approved by the
State Personnel Director. Performance-based awards shall be
distributed in accordance with G.S. 126-7.
Authority G.S. 126-4; 126-7.
25 NCAC 01O .0105 DISPUTE RESOLUTION
Employee disputes concerning the fairness of their performance
appraisal or the amount of their performance-based award shall
be addressed in accordance with 25 NCAC 01J .0900.
Authority G.S. 126-4; 126-7.
25 NCAC 01O .0106 MONITORING, EVALUATING,
REPORTING
Administration of the performance management system in each
agency shall be monitored to ensure that appraisal ratings and
salary increases and awards are distributed fairly and equitably.
PROPOSED RULES
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1622
(1) The State Personnel Director shall report annually on
the administration of performance management systems to the
State Personnel Commission.
(2) Each agency shall periodically evaluate its performance
management system to determine how effectively the system is
meeting the purposes stated in 25 NCAC 01O .0102 and take
actions to improve the system. Evaluation findings and
improvement actions shall be reported to the State Personnel
Director.
Authority G.S. 126-4; 126-7.
SECTION .0200 - THE PERFORMANCE MANAGEMENT
SYSTEM
25 NCAC 01O .0201 PERFORMANCE
MANAGEMENT PROCESS
(a) The state's Performance Management System shall consist of
a one-year work planning and performance evaluation cycle.
The steps in the one-year review cycle are:
(1) Work plan developed for an employee at the
beginning of the review cycle.
(2) Interim Review (assessment) of each
employee's progress is completed by the
supervisor and discussed with the employee
six months into the cycle.
(3) Improvement Plan that addresses any deficient
performance.
(4) Development plan that addresses career
development needs.
(5) Performance Appraisal at the end of each
review period evaluates an employee's
accomplishments against the goals, objectives
and competency requirements that were
established at the start of the cycle. Each
employee receives an overall rating. Any
employee who receives an Unsatisfactory or
Below Good rating must have a developmental
plan indicating where improvements are
needed and that specifies training and
development activities to improve
performance.
(b) The Performance Management Process is the sequence of
actions that supervisors and managers take when interacting with
employees about their performance. The three parts of this
Process are:
(1) Planning - At the beginning of the work cycle,
the supervisor and the employee shall meet to
develop the employee's work plan.
(2) Managing - This part of the Performance
Management process includes the day-to-day
tracking of the employee's progress toward
achieving the performance expectations by:
(A) Feedback through coaching and
reinforcing discussions.
(B) Interim review – Every supervisor
must meet with each employee at
least at the midpoint of the work
cycle for an interim review of
performance.
(3) Appraising - At the end of the work cycle, the
supervisor shall meet with each employee to
discuss the employee's actual performance and
record the actual results and behavior for each
expectation as follows:
(A) Supervisor rates each responsibility
and records the rating on the work
plan.
(B) Supervisor rates each competency
and records the rating on the work
plan.
(C) The overall rating is discussed with
the employee and recorded on the
work plan.
(D) The overall summary statements
supporting the rating are written.
Authority G.S. 126-4; 126-7.
25 NCAC 01O .0202 COMPONENTS OF AN
OPERATIVE SYSTEM
Each agency is required to have the following:
(1) Agency-Specific Policy.
(2) Individual Work Plan.
(3) Rating Scale.
(4) Performance Appraisal Summary.
(5) Development or Performance Improvement
Plan for each work plan.
(6) Education/Training Program.
(7) Performance Pay Dispute Resolution
Procedure.
(8) Performance Management and Pay Advisory
Committee.
Authority G.S. 121-5; 126-4; 126-7.
25 NCAC 01O .0203 RELATIONSHIP/PERFO
RMANCE MGMT/OTHER HUMAN RESOURCES
SYSTEMS
(a) Performance management shall be an integral part of the
total management of an organization. Information obtained
during the Performance Management Process about individual
employees or from specific units of the organization shall be a
consideration in making other personnel management decisions.
The design of the job shall be the basis for job analysis, which
determines the content of the performance appraisal.
Information obtained from performance appraisals must
influence selection, staffing, discipline, training, and
development.
(b) Performance appraisal information shall be one
consideration in making other personnel decisions such as
promotions, reductions in force, performance salary increases,
and all performance-based disciplinary actions. Personnel
policies dealing with these actions also require consideration of
other information. Performance appraisal alone shall not
determine such decision.
PROPOSED RULES
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1623
(c) In order to achieve internal consistency in personnel
administration, agencies shall adopt procedures that meet the
following requirements:
(1) A current (within the past 12 months)
Performance Appraisal Summary shall be on
file for an employee before any of the
personnel actions listed in Paragraph (b) of
this Rule can be affected.
(2) Any proposed personnel action as mentioned
in this Rule shall be consistent with the overall
rating of the employee's performance.
(3) In cases in which the personnel action
recommended by the supervisor appears
inconsistent with the current overall rating, the
supervisor shall write a justification to
accompany the recommendation.
Authority G.S. 126-4; 126-7.
25 NCAC 01O .0204 RESPONSIBILITIES OF THE
STATE PERSONNEL COMMISSION
The State Personnel Commission shall submit a report on the
Performance Management System annually in accordance with
G.S. 126-7(c)(9). The report shall include, in addition to
statutorily mandated information, recommendations for
improving and correcting any inconsistencies in the total
Performance Management System and in each agency.
Authority G.S. 126-4(8); 126-7.
25 NCAC 01O .0205 RESPONSIBILITIES OF THE
OFFICE OF STATE PERSONNEL
The Office of State Personnel, under the authority of G.S. 126-3,
shall administer and enforce all Rules for the performance
management system throughout North Carolina State
Government. Each agency shall submit information annually for
each cycle. This shall include submission of planning
documents as well as participating in audits conducted by the
Office of State Personnel.
Authority G.S. 126-4; 126-7.
25 NCAC 01O .0206 RESPONSIBILITIES OF
AGENCIES
(a) Top management within each agency shall establish,
monitor and evaluate their individually tailored performance
management systems subject to approval by the State Personnel
Director as being in full compliance with this Subchapter. The
head of each agency shall bring all units within the agency's
purview into full compliance with this Subchapter by January 1,
1990, except for those provisions otherwise stipulated. Failure
to adhere to this Subchapter may result in the loss or withholding
of performance increase funds throughout an entire agency.
(b) Each agency head shall submit an annual report to the Office
of State Personnel, which includes:
(1) a complete description of the current
performance management system,
(2) performance increase distribution of each
employing unit,
(3) data on demographics of performance ratings,
(4) frequency of evaluations performance pay
increases awarded, and
(5) the implementation schedule for performance
pay increases.
(c) Within 60 calendar days after receipt of feedback on this
annual report from the Office of State Personnel, the head of
each agency shall prepare a written plan alleviating inequities
and systematic deficiencies and submit it to the Office of State
Personnel for concurrence. The head of same agency shall also
take sanctions against the managers of those units in which
inequities or systematic deficiencies exist.
Authority G.S. 126-4; 126-7.
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1624
This 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. Also, the Contested Case Decisions are available on the Internet at
http://www.ncoah.com/hearings.
OFFICE OF ADMINISTRATIVE HEARINGS
Chief Administrative Law Judge
JULIAN MANN, III
Senior Administrative Law Judge
FRED G. MORRISON JR.
ADMINISTRATIVE LAW JUDGES
Sammie Chess Jr. Beecher R. Gray
Selina Brooks A. B. Elkins II
Melissa Owens Lassiter Joe Webster
Don Overby
CASE DATE OF PUBLISHED DECISION
AGENCY NUMBER ALJ DECISION REGISTER CITATION
ALCOHOL BEVERAGE CONTROL COMMISSION
Santos Ferman T/A Paraiso vs. ABC Commission 05 ABC 1828 Chess 05/31/06
Owl's Eyes of Asheville, LLC, T/A Hooters v. ABC Commission 05 ABC 1989 Chess 06/07/06
Carlos Salas T/A Boom Boom Boom Night Club, 1205 Elgin Avenue 06 ABC 0719 Chess 08/07/06
Hight Point, NC 27262 v. ABC Commission
ABC Commission v. T/A Minit Shop 06 ABC 0862 Morrison 10/17/06
ABC Commission v. Carlos Salas, T/A Boom Boom Room Night Club 06 ABC 1262 Gray 01/04/07
ABC Commission v. Kenneth A. Jones, T/A Ken One Stop 06 ABC 1368 Gray 12/04/06
CRIME VICTIMS COMPENSATION
Timothy P. Webber v. Crime Victims Compensation Commission 05 CPS 1568 Lassiter 06/08/06 21:01 NCR 109
Valerie Joy McGill v. Crime Victims Compensation Commission 06 CPS 0038 Gray 06/08/06
Torrey Charles v. Crime Victims Compensation Commission 06 CPS 0051 Chess 09/21/06
Charles Leon Champion v. Crime Victims Compensation Commission 06 CPS 0155 Elkins 06/08/06
Teresa M. Marley v. Crime Victims Compensation Commission 03 CPS 0185 Elkins 01/19/07
Dantevius L. Bland v. Crime Victioms Compensation Commission 06 CPS 0654 Elkins 11/15/06
Sharron Smith v. Crime Control and Public Safety 06 CPS 0708 Gray 07/12/06
Elaine B. Deloatch v. Crime Victims Compensation Commission 06 CPS 0736 Wade 08/15/06
Christopher Lee Vess v. Crime Control Victims Compensation Services 06 CPS 0890 Gray 08/23/06
Division
Chris K. Daniels v. Crime Control and Public Safety, Div. of Victim 06 CPS 0909 Lassiter 08/01/06
Compensation Commission
Tamika L. Howard-Smith v. Crime Victims Compensation 06 CPS 1161 Elkins 09/06/06
Danny Thoms v. Victim Compensation 06 CPS 1237 Overby 12/04/06
James A. Hillman v. Crime Victims Compensation Commission 06 CPS 1339 Wade 12/08/06
Jacqueline D. Dupree v. Crime Victims Compensation 06 CPS 1360 Overby 12/15/06
Pervis R. Owens Sr v. OAH, Crime Victims Compensation Commission 06 CPS 1492 Morrison 09/28/06
Brian Curlee v. Crime Victims Compensation Commission 06 CPS 1677 Wade 12/13/06
A list of Child Support Decisions may be obtained by accessing the OAH Website: www.ncoah.com/decisions.
DEPARTMENT OF AGRICULTURE
Shacond Muse Bey v. Dept. of Agriculture 06 DAG 0985 Morrison 08/16/06
Clara Church v. Dept. of Agriculture and Consumer Services 06 DAG 1422 Wade 12/11/06
DEPARTMENT OF CULTURAL RESOURCES
William H. Miller v. Cultural Resources, State Historic Preservation 05 DCR 0439 Mann 07/03/06
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Andrea Green, Parent, on behalf of her Miner Child, Andrew Price 01 DHR 2149 Gray 06/29/06
Charles N. Long v. DHHS, Wake County Human Services 02 DHR 0932 Lassiter 12/21/06
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1625
Michael Eugene Dalton v. DHHS, DFS 02 DHR 1456 Lassiter 10/06/06
Marquelle's Enrichment Center for Edith James and Wilhelmenia
Bridges v. Div. Child Development Regulatory Services Section 02 DHR 1537 Gray 08/21/06
Annie Ruth Laws v. Caldwell County DSS 03 DHR 0824 Lassiter 01/29/07
Afusat Daodu v. DHHS, DFS 03 DHR 1489 Lassiter 12/08/06
Michael Eugene Dalton v. DHHS, DFS 04 DHR 0288 Lassiter 10/06/06
George Onebati NY Angena v. DHHS, DFS, Health Care Personnel Registry 04 DHR 0764 Wade 12/27/06
Gerald Wanamaker v. Ms Satana T. Deberry General Coun. DHHS 04 DHR 1513 Lassiter 06/14/06
Michael Eugene Dalton v. DHHS, DFS 04 DHR 1662 Lassiter 10/06/06
Rebecca Hamilton, Beck's Play and Learn v. DHHS, Div. of Child 04 DHR 1866 Lassiter 10/02/06
Development
Restoration Church of God in Christ, d/b/a Restoration's Joys of the Heart 05 DHR 0097 Elkins 08/30/06
Child Care Center v. DHHS, Div. of Child Development
Restoration Church of God in Christ Inernation, d/b/a Joys of the Heart 05 DHR 0124 Elkins 08/30/06
Child Care Center v. DHHS, Div. of Public Health, Child and Adult Care
Food Program
Handa of the Future, Sheila Martin v. DHHS, Child and Adult Care 05 DHR 0457 Wade 06/27/06
Food Program
Anthony Wayne Sando v. DHHS 05 DHR 0465 Gray 11/14/06
Patricia Filyaw's FCCH vs. Div. of Child Development 05 DHR 0803 Gray 05/30/06
Amanda M. Walters v. DHHS, DFS, Health Care Personnel Registry Section 05 DHR 1121 Chess 05/30/06
Carolyn W. Cooper, Happy Days Child Care v. Div. of Child Development 05 DHR 1255 Lassiter 09/12/06
Shari Ann Torain v. DHHS 05 DHR 1317 Elkins 06/08/06
Delfina Harris v. DHHS, DFS 05 DHR 1344 Wade 10/11/06
Patrick Francis Diamond v. DHHS 05 DHR 1356 Gray 12/14/06
County of Buncombe & NC Radiation Therapy Management Services, Inc. 05 DHR 1369 Gray 05/26/06 21:01 NCR 115
d/b/a 21st Century Oncology v. DHHS, DFS, Certificate of Need
Section, & Asheville Hematology and Oncology Associates, P.A.
Jamie Bluto, Guardian of Heather Bluto v. Mecklenburg County Area Mental 05 DHR 1427 Chess 05/17/06
Health and Developmental Disabilities
United Home Care, Inc v. DHHS, DFS, CON Section and Liberty Home 05 DHR 1456 Wade 06/19/06
Care II, LLC, Total Care Home Health of NC, INC.,
Total Care Home Health of NC, INC., v. DHHS, DFS, CON Section 05 DHR 1464 Wade 06/19/06
and Liberty Home , Care II, LLC, Total Care Home Health of NC, INC.,
Brookside Montessori School v. DHHS, Div. of Child Development 05 DHR 1465 Gray 06/28/06
Novant Health, Inc. and Forsyth Memorial Hospital, Inc. 05 DHR 1490 Lassiter 05/31/06
d/b/a Forsyth Medical , Center v. DHHS, DFS, Certificate of Need Section
Duke University Health System d/b/a Durham Regional Hospital v. DHHS, 05 DHR 1491 Lassiter 05/31/06
DFS, Certificate of Need Section
Duke University Health System d/b/a Durham Regional Hospital v. DHHS, 05 DHR 1492 Lassiter 05/31/06
DFS, Certificate of Need Section
Community General Health Partners, Inc. d/b/a Thomasville Medical Center 05 DHR 1506 Lassiter 05/31/06
v. DHHS, DFS, Certificate of Need Section
Shannon Woodell Glidewell v. DHHS, DFS 05 DHR 1514 Gray 09/29/06
Kamaria Smith v. DHHS, DFS, Nurse Aid Registry 05 DHR 1547 Mann 12/22/06
LaBrenda Perry Bennett v. Health Care Personnel Registry 05 DHR 1579 Morrison 07/13/06
Carolina Kids Academy, Inc v. DHHS, Division of Child Development 05 DHR 1906 Morrison 11/03/06
Lisa D. Smith-Perri on behalf of Gibson Price Smith, Brother 05 DHR 1982 Gray 06/26/06
All Braxton, The Braxton Home II v, DHHS, DFS 05 DHR 1986 Mann 07/20/06
Bertha Graham v. DHHS, DFS, Health Care Personnel Registry 05 DHR 2040 McCotter 06/08/06
Jeanette Clark v. State Board of Nursing, Raleigh, NC 05 DHR 2076 Gray 07/10/06
Yavonka Renee Vann v. DHHS, DFS 05 DHR 2108 Gray 07/12/06
Janet Johnson v. Health Care Personnel Registry 05 DHR 2127 Gray 08/15/06
Zion Hill Ame Zion Church, Child Development Center v. DHHS, Div. of 05 DHR 2184 Gray 07/12/06
Child Development
Steven Thomas Safrit v. DHHS 05 DHR 2191 Mann 06/20/06
Rosa Currie v. DHHS 05 DHR 2204 Elkins 09/26/06
Ruben Perez v. DHHS, Div. of Public Health Women and Children's Health 05 DHR 2225 Lassiter 05/10/06
Section
Hospice & Palliative Care Charlotte Region v. DHHS, DFS, CON Section, 06 DHR 0018 Elkins 09/28/06
Licensure and Certification Section and Liberty Home Care II, LLC
Hospice & Palliative Care Charlotte Region v. DHHS, DFS, CON Section 06 DHR 0022 Elkins 09/14/06 21:07 NCR 674
and DHHS, DFS, Licensure and Certification Section
Keith L. Mallory Jr., v. DHHS, DFS 06 DHR 0023 Wade 12/27/06
Jacqueline Hall v. DHHS, Div. of Child Development 06 DHR 0025 Lassiter 08/31/06
Joshua B. Worley, by and through his Guardian as Litem, Bertha Gail Levi 06 DHR 0033 Mann 09/11/06
v. DHHS, Div. of Medical Assistance
Helen A. Robinson, Administrator for New Life Early Childhood 06 DHR 0171 Wade 12/29/06
Development Center v. DHHS, Div. of Child Development
Richard Wayne Baird v. DHHS, DMA 06 DHR 0177 Gray 06/15/06
Rosemary Nwanko v. DHHS, DFS, Mental Health Licensure and 06 DHR 0186 Gray 07/12/06
Certification Section
JoAnn Baldwin v. DHHS, DFS, Child and Adult Care Food Program 06 DHR 0208 Wade 06/27/06
Joyce Moore v. DHHS 06 DHR 0212 Morrison 08/15/06
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1626
Jansala Walker v. Healthcare Personnel Registry 06 DHR 0213 Wade 06/07/06
Bobby Locklear v. DHHS, DFS, Adult Licensure Section 06 DHR 0215 Mann 06/20/06
Linwood B. Cameron d/b/a New Millennium Management Services 06 DHR 0218 Elkins 06/08/06
v. DFS
Selvia Chapel Child Care Center ID# 74000208, Bishop A. H. Hartsfield v. 06 DHR 0268 Gray 08/21/06
DHHS, Div. of Child Development
Deloris Johnson v. DHHS, Div. of Public Health, Child and Adult Care 06 DHR 0271 Gray 05/17/06
Food Program
Jack Williamson v. Div. of Medical Assistance Third Party Recovery 06 DHR 0300 Chess 08/04/06
Shawqi Abdalla Ibtisam Omar v. OAH 06 DHR 0332 Gray 07/10/06
Daniel Marshall v. DHHS 06 DHR 0340 Wade 06/27/06
Katie Morris v. DHHS 06 DHR 0344 Gray 08/21/06
Michael Glenn Shell v. Board of Health Care Workers Registry, DHHS 06 DHR 0358 Elkins 07/31/06
Angel Allman v. Div. of Medical Assistance Medical Policy 06 DHR 0370 Wade 08/09/06
Tammie L. Greene v. DHHS, Div. of Medical Assistance 06 DHR 0386 Chess 07/25/06
Carol Denny v. DHHS 06 DHR 0395 Mann 09/05/06
Myrna Diane Bunns v. DHHS, Division of Child Development 06 DHR 0399 Gray 06/19/06
Joseph Randy Creech v. Dix, DHHS 06 DHR 0416 Mann 09/06/06
Annette Alexander v. DHHS 06 DHR 0471 Elkins 06/23/06
Bernice Norman v. Wash Co. Dept. of Social Services 06 DHR 0472 Elkins 06/23/06
Daisey Fish v. Dorthea Dix Hospital 06 DHR 0473 Morrison 08/02/06
Delisa Jean Scott v. DHHS, DFS 06 DHR 0475 Elkins 06/23/06
Deloris Johnson v. DHHS, Div. of Public Health, Child and Adult Care 06 DHR 0488 Gray 05/17/06
Food Program
Myrna A. Batson v. Broughton Hospital 06 DHR 0503 Gray 07/12/06
Digna A. Marte v. DHHS, Div. of Medical Assistance 06 DHR 0551 Mann 07/21/06
Carolyn W. Cooper, Happy Days Child Care Center v. Div. of Child 06 DHR 0565 Lassiter 08/01/06
Development, DHHS
Eric Becton v. DHHS 06 DHR 0594 Elkins 06/23/06
Bibian Nwanguma v. Health Care Personnel Registry 06 DHR 0651 Wade 08/14/06
Grace A. Wright v. Wake County Health and Human Services, Program 06 DHR 0670 Wade 01/04/07
Interg Program Dept.
Abid Ali d/b/a Durham Food Mart v. DHHS, Division of Public Health, 06 DHR 0686 Morrison 12/15/06
Women and Children's Health Section
Regina A McLean v. DHHS, Citizen Affairs/Administration 06 DHR 0691 Gray 06/27/06
Regina A. Mclean v. Human Health Client Assistant Program 06 DHR 0692 Gray 07/20/06
Christy Laws v. DHHS 06 DHR 0698 Elkins 09/07/06
Kara Elmore v. DHHS, DFS 06 DHR 0702 Gray 08/23/06
James Soules v. DHHS 06 DHR 0718 Gray 08/01/06
DeJuana Byrd Heavenly Angels Child Center v. Child Abuse/ Neglect 06 DHR 0720 Lassiter 06/14/06
Angela M. Rhodes v. New Hanover County DSS 06 DHR 0730 Mann 09/05/06
Full Potential, LLC v. DHHS 06 DHR 0781 Gray 07/21/06
Little Town Learning Center, Inc., By Angela Beacham v. DHHS, Div. of 06 DHR 0786 Morrison 10/05/06
Public Health, Child and Adult Care Food Program
Alberta Denise Murphy v. DHHS and Registry 06 DHR 0788 Elkins 09/07/06
Forsyth Memorial Hospital, Inc d/b/a Forsyth Medical Center and 06 DHR 0810 Mann 01/18/07 21:18 NCR 1632
Community General Health Partners, Inc. d/b/a Thomasville Medical
Center v. DHHS, DFS, CON and North Carolina Baptist Hospital
Lexington Memorial Hospital, Inc. and Hight Point Regional Health
System
Bettie B. Woods v. Gardian Ad Litem, Angela Phillips, Lincoln County 06 DHR 0830 Gray 06/28/06
DSS/Catawba BAL
Rockingham County Department of Social Services v. Medicaid/Value 06 DHR 0839 Lassiter 08/01/06
Options
Denise Little v. Catawba County LME, John Hardy, Director 06 DHR 0860 Lassiter 06/23/06
Consultant Deanna Hoxworth
Edna Cray - Kid's Academy v. DHHS, Div. of Public Health Child and 06 DHR 0887 Gray 06/13/06
Adult Care Food Program
Barbara J. Younce v. DHHS, DFS 06 DHR 0927 Gray 12/05/06
Norman Lavel Bracey, Jr., v. Social Services (Medicaid) 06 DHR 0955 Gray 07/21/06
Kenyetta Shaw v. DMH/DD/SAS 06 DHR 0966 Elkins 01/23/07
Elaine Weidman v. DHHS, DFS, Health Care Personnel Registry 06 DHR 1032 Gray 10/25/06
Ariel Horowitz, Minor, by her Parents David Horowitz and Rosalind Heiko 06 DHR 1064 Lassiter 08/21/06
v. Div. of Medical Assistance, MH/DD/SAS and DHHS
Keira T. Williams v. Wake County Dept. of Social Services 06 DHR 1067 Lassiter 07/06/06
Brentwood Child Care Center (92001147) v. DCD/Child Abuse Neglect 06 DHR 1100 Lassiter 10/12/06
Unit
Angela Fay Carraway v. DHHS 06 DHR 1105 Morrison 08/21/06
Ivory Jade Alson v. Wake Co. Dept. of Social Services 06 DHR 1106 Lassiter 07/10/06
Play and Learn Childcare, Mary Ellen Helton v. DHHS, Div. of Public 06 DHR 1108 Gray 07/24/06
Health, Chalid and Adult Care Food Program
RTTS, Inc v. DHHS, DFS, Mental Health Licensure and Cert. Section 06 DHR 1127 Lassiter 10/02/06
Rhonda Bumgarner v. DHHS, Div. of Medical Assistance 06 DHR 1162 Gray 09/14/06
Zabrina Johnson v. DHHS 06 DHR 1170 Gray 10/09/06
Leea Holt, Tari Guevara v. Div. of Child Development, DHHS 06 DHR 1181 Morrison 10/13/06
Reno Judd/Noreen Currie v. DHHS 06 DHR 1183 Gray 10/26/06
New Directions II, Tamara Perry v. DHHS, DFS, Mental Health 06 DHR 1199 Overby 11/22/06
Licensure & Certification Section
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1627
New Directions II Lane House, Tama Perry v. DHHS, DFS Mental 06 DHR 1200 Overby 11/22/06
Health Licensure & Certification Section
Beverly M. West v. DHHS 06 DHR 1238 Wade 09/26/06
Hospice and Palliative Care Center of Alamance-Caswell, LLC v. DHHS, 06 DHR 1247 Elkins 12/15/06
DFS, CON Section, Licensure and Certification Section and Community
Home Care of Vance County, Inc. d/b/a Community Home Care and
Hospice
Hospice and Palliative Care Center of Alamance-Caswell, LLC v. DHHS 06 DHR 1248 Elkins 12/15/06
DFS, Licensure and Certification Section, CON Section and Liberty
Home Care, LLC
Sherri Groves v. Div. of Child Development 06 DHR 1252 Gray 09/14/06
Graceland Food Mart, James C. McGirt, Owner v. DHHS 06 DHR 1266 Elkins 09/22/06
April Ivelisse Truitt v. DHHS 06 DHR 1288 Elkins 12/12/06
Willie P. Little v. Medicaid 06 DHR 1315 Gray 11/09/06
Debra Brown v. DHHS 06 DHR 1323 Gray 11/27/06
Grandma's House Night Care, Shirley Brown v. Jeff Gaster, Dept. of Child 06 DHR 1331 Overby 11/27/06
Development
Mary Jane Rutledge v. NCOAH 06 DHR 1332 Gray 09/12/06
Rebecca G Banks v. Dept. of Social Services, Crystal Jackson 06 DHR 1333 Overby 11/28/06
Jamie Deyton for Crystal Cooper v. DHHS, Div. of MH/DD/SAS Customer 06 DHR 1357 Webster 12/15/06
Service Section
Scott Andrew Broadway v. DHHS (Medicaid) 06 DHR 1395 Gray 11/13/06
Kyle Collier, a minor, by his mother and legal guardian, Orbie Etheridge v. 06 DHR 1412 Morrison 12/22/06 21:18 NCR 1643
DHHS
Betty Betts v. Division of Medical Assistance 06 DHR 1449 Morrison 11/02/06
Rita Perterson v. OAH 06 DHR 1456 Wade 12/13/06
Phyllis Hale for daughter Haley Hale v. OAH 06 DHR 1467 Elkins 12/11/06
Lots of Love Child Development Center v. DHHS 06 DHR 1471 Lassiter 12/15/06
Rodney Winstead Jr v. DHHS 06 DHR 1475 Morrison 10/26/06
Aunt Alice Daycare Center, Alice Camara v. DHHS, Nutrition Program 06 DHR 1490 Lassiter 10/13/06
Mr. Timmy K Pless, Barry Moore, Advocate v. DHHS, Div. of Medical 06 DHR 1500 Wade 12/13/06
Assistance
LaShawn Hardy v. Health Care Personnel Registery 06 DHR 1501 Overby 01/04/07
Connie Lee Yates v. DHHS 06 DHR 1558 Morrison 09/27/06
Valyncia J. London v. DHHS 06 DHR 1601 Lassiter 11/13/06
Kelly A. Schofield, M.D., v. DHHS, Mental Health Licensure and 06 DHR 1602 Gray 02/21/07
Certification
Rose Marie (Allala) Sevorwell v. Wake County & Johnston County, DHHS 06 DHR 1623 Gray 11/09/06
Uniquely Supported, Inc, Shawn Kuhl (provide appropriate supervision) 06 DHR 1634 Lassiter 12/04/06
Julian Jones v. EDS – Prior Approval 06 DHR 1679 Gray 12/20/06
Natasha Renee McNeely v. Western Carolina Center, J Iverson Riddle 06 DHR 1682 Lassiter 10/31/06
Development Center
Tishea Talley v. Nurse Registry 06 DHR 1724 Overby 11/22/06
Diane Jenkins-Mother/Gaurdian for Erzal Carl Johnson v. DHHS, Div. of 06 DHR 1784 Lassiter 01/24/07
Mental Health Developmental Disabilities and Substance Abuse
Linda Lea, Grace Manor v. Lincensure Section 06 DHR 1789 Lassiter 01/24/07
Polley Clinic of Dermatology & Dermatological Surgery PA 06 DHR 1939 Gray 01/08/07
Medical Mobility Center v. Div. of Medical Medicaid Program 06 DHR 2034 Gray 12/14/06
Kim Michelle Sinclair, Kim Sinclair (Jasmine) v. DHHS 06 DHR 2117 Overby 01/11/07
Shanon B. Kesler (mother), Cassie L. Kesler (daughter) v. Social Services 06 DHR 2170 Overby 01/25/07
Teresa B. Morton, v. Santana T. Deberry and Drexdal Pratt, Chief of 06 DHR 2180 Webster 02/08/07
OEMS, Office of Emergency Medical Services
Emily Thompson, Drug America v. Medicaid/NCDHHS 06 DHR 2341 Gray 02/20/07
Marijuana Fisher Ford v. DHHS, DFS 06 DHR 2358 Lassiter 02/20/07
DEPARTMENT OF ADMINISTRATION
Corporate Express Office Products, Inc. v. NC Division of Purchase and 06 DOA 0112 Gray 05/17/06 21:01 NCR 163
Contract, & Office Depot, Inc.
Hershel Sarraf, Oro Avanti, Inc. v. DOA, Div. of Purchase and Contract 06 DOA 0646 Wade 09/20/06
DEPARTMENT OF CORRECTIONS
Michael Eugene Hunt v. DOC 06 DOC 0498 Gray 06/20/06
DEPARTMENT OF JUSTICE
Steven Forrest Brubaker v. NC Criminal Justice Education and Training 05 DOJ 1405 Elkins 05/31/06 21:01 NCR 158
Standards Commission
Jeffrey Michael Quinn v. Criminal Justice Training Standards Comm. 05 DOJ 1406 Elkins 08/04/06
Christopher Paul Stanfield v. Criminal Justice and Training Standards 05 DOJ 1520 Wade 08/28/06
Commission and Sheriff's Education and Training Standards Comm.
Christopher Paul Stanfield v. Criminal Justice and Training Standards 05 DOJ 1521 Wade 08/28/06
Commission and Sheriff's Education and Training Standards Comm.
Todd Franklin Wyke v. Criminal Justice Education and Training Standards 05 DOJ 2223 Lassiter 09/15/06
Commission
Michael Edward Sutton v. NC Criminal Justice Education & Training 06 DOJ 0012 Morrison 05/09/06
Standards Commission
Philip Lee Holdaway v. Sheriffs' Education and Training Standards Comm. 06 DOJ 0069 DeLuca 08/04/06
Anthony Lee Davis v. Sheriffs' Education and Training Standards Comm. 06 DOJ 0070 Gray 08/26/06
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
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Bobbie Jo Bullins v. Sheriffs' Education and Training Standards Comm. 06 DOJ 0071 Lassiter 12/13/06
Todd Franklin Wyke v. DOJ, Company Police Program 06 DOJ 0146 Lassiter 09/15/06
Scotty Eugene Robinson v. Sheriffs' Education and Training Standards 06 DOJ 0200 Mann 12/08/06
Commission
Angela Renee Lail v. Sheriffs' Education and Training Standards Comm. 06 DOJ 0228 Gray 08/06/06 21:06 NCR 514
James Woodrow Jacobs v. Sheriffs' Education and Training Standards 06 DOJ 0229 Gray 07/12/06
Commission
Virble Leake, Jr. v. Private Protective Services Board 06 DOJ 0397 Morrison 10/05/06
Jason Matthew Lish v. Criminal Justice Education and Training Standards 06 DOJ 0579 Wade 09/12/06
Commission
Matthew Vicente Saylors v. Criminal Justice Education and Training 06 DOJ 0597 Wade 12/27/06
Standards Commission
Christopher Brian Mingia v. Criminal Justice Education and Training 06 DOJ 0598 Wade 09/12/06
Standards Commission
Thomas M. Combs v. DOJ, Company Police Program 06 DOJ 0640 Elkins 10/16/06
Russell Lee Weaver v. Criminal Justice Education and Training Standards 06 DOJ 0662 Gray 01/03/07
Commission
Christopher S. Cummings v. DOJ, Company Police Program 06 DOJ 0696 Gray 08/11/06
Allison M. Burdette v. Company Police Program 06 DOJ 0733 Wade 08/11/06
Amber Lee Baldwin v. Sheriffs' Education and Training Standards Comm. 06 DOJ 0814 Gray 06/26/06
Reginald Warren v. Criminal Justice Education and Training Standards 06 DOJ 0880 Gray 09/08/06
Commission
Betty Perry v. Criminal Justice Education and Training Standards Comm. 06 DOJ 0881 Lassiter 09/20/06
Danny Kaye Barham and NC Detective Agency, Inc v. Private Protective 06 DOJ 0870 Morrison 08/07/06
Services Board
David L. Willams v. Private Protective Services Board 06 DOJ 0876 Morrison 07/18/06
Donna G. Redding v. Private Protective Services Board 06 DOJ 0877 Morrison 08/01/06
Joseph O. Smiley v. Private Protective Services Board 06 DOJ 0878 Morrison 08/01/06
Sean Thomas Roberts v. Sheriffs' Education and Training Standards Comm. 06 DOJ 1061 Elkins 11/30/06
William Eugene Lemke v. Sheriffs' Education and Training Standards 06 DOJ 1293 Overby 11/28/06
Commission
Amy Pearl King v. Sheriffs' Education and Training Standards Comm. 06 DOJ 1295 Lassiter 10/10/06
Marcellus Moore v. Criminal Justice Education and Training Standards 06 DOJ 1296 Mann 01/22/07
Commission
Frankey Denese White v. Sheriffs' Education and Training Standards 06 DOJ 1297 Gray 11/03/06
Commission
John Robert Fedyszyn v. Alarm Systems Licensing Board 06 DOJ 1345 Wade 12/27/06
Jerry Lynn Cheek v. Sheriffs' Education and Training Standards Comm. 06 DOJ 1496 Elkins 12/11/06
Quintin G. Burnett v. Criminal Justice Education and Training Standards 06 DOJ 1646 Gray 12/20/06
Commission
Michael Abbot Copeland v. Sheriffs' Education and Training Standards 06 DOJ 1742 Gray 02/05/07
Commission
James Phillip Daniel v. Sheriffs' Education and Training Standards Comm. 06 DOJ 1743 Gray 01/08/07
Ronnie Lee Blount v. Criminal Justice Education and Training Standards 06 DOJ 1749 Gray 01/18/07
Commission
Annette Lassiter Joyner v. Sheriffs' Education and Training Standards 06 DOJ 1750 Gray 01/08/07
Commission
Joshua Michael Richardson v. Sheriffs' Education and Training Standards 06 DOJ 1788 Gray 01/08/07
Commission
Katrina Moore Bowden v. Sheriffs' Education and Training Standards 06 DOJ 1919 Gray 01/18/07
Commission
DEPARTMENT OF STATE TREASURER
Phyllis Dianne Smith v. Department of State Treasurer Retirement Systems 05 DST 1378 Wade 12/27/06
Division
Percy E. Myers v. Retirement Systems Division, LGERS, 06 DST 0048 Chess 05/31/06
Larry D. Beck v. Local Governmental Employees' Retirement System, a 06 DST 0366 Overby 01/03/07
Corporation, et al
Mary B. Spencer v. State Treasurer, Retirement Systems Division 06 DST 0534 Chess 11/09/06
Harry Whisnat v. Teachers' and State Employees' Retirement System of 06 DST 0591 Gray 09/19/06
NC, A Corporation, Board of Trustees of the Teachers' and State
Employees' Retirement System of NC, A body politic and Corporate,
DOT, Retirement Systems Div. and the State of NC
Robin C. Fish v. Department of Treasurer Retirement Systems Division 06 DST 1353 Overby 01/11/07
EDUCATION, STATE BOARD OF
Darrell Wayne Purcell v. State Board of Education 05 EDC 1861 Morrison 10/11/06
Elizabeth Ann Mical v. Department of Public Instruction 05 EDC 1962 Morrison 08/04/06
Margaret Frances Handest v. Dept. of Public Instruction, Center for 05 EDC 2057 Morrison 10/11/06
Recruitment and Retention
Linda Ellis v. Dept. of Public Instruction – National Board – Certification 06 EDC 0002 Morrison 10/12/06
Monica Robertson v. Department of Public Instruction 06 EDC 0359 Morrison 08/02/06
Gail G. Brooks v. Department of Public Instruction 06 EDC 0437 Morrison 08/07/06
Reginald Powe v. Public Schools of North Carolina, State Board of Educ. 06 EDC 1116 Elkins 10/03/06
Department of Public Instruction, Superintendent's Ethics Advisory
Committee
Charlie L. Richardson v. Department of Public Instruction Licensure Section 06 EDC 1131 Gray 11/03/06
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
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Brenda H. Cox v. Center for Recruitment & Retention National Board for 06 EDC 1546 Elkins 12/11/06
Professional Teaching Standards, Dept. of Public Instruction
Catherine (Cathy) Rush v. State Board of Education, Dept. of Public 06 EDC 1622 Gray 11/09/06
Instruction
Melissa Thomas v. State Board of Education 06 EDC 1667 Gray 01/29/07
Katrina Walker v. DPI 06 EDC 1804 Gray 01/29/07
Jeffrey Wayne McClain v. Wake Co. Public School System 06 EDC 2042 Elkins 01/05/07
James Aaron Swafford v. DPI 06 EDC 2175 Elkins 01/17/07
Wendy Holloway v. State Board of Education 07 EDC 0048 Gray 02/22/07
DEPT. OF ENVIRONMENT AND NATURAL RESOURCES
Howard L. Hardy v. Co. of Craven Department of Health 00 EHR 0803 Gray 06/26/06
Waterkeeper Alliance, et al., and Richard Dove v. DENR, Division of Water 02 EHR 1353 Gray 01/30/07
Quality, Murphy-Brown, LLC, Brown's of Carolina, LLC, Carroll's
Foods, LLC, and Murphy Farms, LLC, North Carolina Pork Council,
Inc, NC Poultry Federation, Inc
Wheatly Oil Company, Inc v. DENR, Div. of Waste Management 03 EHR 0030 Gray 08/04/06
Auddies, Inc v. DENR 03 EHR 1312 Lassiter 10/18/06
Joe L. Wilson v. DENR 03 EHR 1641 Gray 10/09/06
Ronald L. Preston v. Davidson County Health Department 03 EHR 2329 Gray 08/24/06
Auddies, Inc v. DENR 04 EHR 0103 Lassiter 10/18/06
Sandra M. Netting v. DENR 04 EHR 1768 Gray 09/29/06
County of Davidson v. DENR, Div. of Air Quality 04 EHR 0362 Wade 09/01/06
Coastland Corporation, James E. Johnson, Jr., Pres v. Pamlico County 04 EHR 0842 Lassiter 10/31/06
Health Department, Environmental Health
Partners Recycling, Inc v. DENR 04 EHR 1503 Wade 12/15/06
Laney Oil Company, Inc, UST# 04-049P, UST# 04-050P v DENR 05 EHR 0135 Gray 06/20/06
Anton Tomassetti v. DENR, Div. of Air Quality 05 EHR 0321 Gray 06/12/06
Raymond S. Carpenter v. DENR 05 EHR 2009 Bryan 08/28/06
John Graham v. DENR, Div. of Air Quality 05 EHR 2029 Gray 05/08/06
Samuel Buck Kiser v. DENR, Div. of Waste Management 05 EHR 2120 Chess 07/25/06 21:06 NCR 519
Christopher S. Anderson, Jan HP Anderson v. Ashe County Health Dept. 06 EHR 0558 Elkins 07/31/06
Heyward Ledford, Wolfpen Associates, Inc. v. DENR 06 EHR 0679 Gray 06/12/06
Parnell-Kinlaw Group, Inc v. DENR, Div. of Land Quality 06 EHR 0743 Mann 09/26/06
William P. Ferris v. DENR, Division of Coastal Management 06 EHR 0908 Gray 02/22/07
William & Valerie Brodie v. DENR/Division of Coastal Management and 06 EHR 0910 Mann 11/08/06
Town of Carolina Beach
Robin R. Moore v. DENR, Div. of Waste Management 06 EHR 0986 Lassiter 11/07/06
Danny Ray Thorpe v. Brunswick Co. Health Dept., Environmental 06 EHR 1041 Gray 08/07/06
Health Department
David Edgar Hine v. DENR, Div of Waste Management, Solid Waste 06 EHR 1044 Mann 12/15/06
Section
John Darlinton v. Division of Water Quality 06 EHR 1081 Gray 02/01/07
Dianne D. Vereen v. Brunswick Co. Health Department 06 EHR 1126 Elkins 09/27/06
Princeton Recreational Park v. DENR 06 EHR 1196 Wade 12/13/06
American Canoe Association, ET.AL v. DENR and DM Farms of Rosehill 06 EHR 1254 Overby 01/02/07
LLC
C.F. Little and Patsy H. Little v. DENR 06 EHR 1340 Lassiter 09/22/06
Fall Creek Land Co Lot#201 Yellowtop Mountain Estates 06 EHR 1436 Wade 12/27/06
Cliff S. Barnes v. EMC 06 EHR 1450 Wade 12/08/06
Joe Walter Sprouse and Talitha LeeAnn Bradburn Sprouse v. The 06 EHR 1472 Lassiter 01/24/07
Buncombe County Health Center, Environmental Health Division
John P. Leonard, Agent for Magnolia Pointe LP v. County of Durham 06 EHR 1568 Gray 10/13/06
Engineering Department
Alvin R. Newell and Barbara A. Newell v. Haywood Co. Health Dept. 06 EHR 1652 Lassiter 01/24/07
Environmental Health
DEPARTMENT OF INSURANCE
Robert Bryan Bender and James V. Bender, Jr. and Wife, Sheron 05 INS 0067 Lassiter 10/06/06
Bender v. Teachers' and State Employees' Comprehensive Major
Medical Plan
Heidi L. Roth v. Teachers' and State Employees' Comprehensive Major 05 INS 1779 Lassiter 10/19/06
Medical Plan
James D. Kelly Jr. v. State Health Plan 06 INS 0013 Morrison 08/07/06 21:06 NCR 524
Daniel C. Johnson v. Teachers' and State Employees' Comprehensive 06 INS 0353 Morrison 07/03/06
Major Medical Plan
Donna Jones/Mark Jones v. Teachers' and State Employees' 06 INS 0779 Wade 12/29/06
Comprehensive Major Medical Plan
Rebecca P. Murray v. George C. Stokes, Executive Administrator 06 INS 0864 Elkins 12/21/06
N.C. State Health Plan
Kerry Stewart v. Teachers' and State Employees' Comprehensive Major 06 INS 1113 Elkins 01/04/07
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1630
Medical Plan
Lou Ann Ostadi v. Teachers' and State Employees' Comprehensive Major 06 INS 1141 Lassiter 01/24/07
Medical Plan
Harry F. Reynolds v. Teachers' and State Employees' Comprehensive 06 INS 1348 Morrison 12/22/06
Major Medical Plan
LICENSING BOARD FOR GENERAL CONTRACTORS
Licensing Board for General Contractors v. S.N. Davis Company, Inc 06 LBC 0827 Webster 01/24/07
(License No. 49245) and Shelby G. Davis, as Qualifier
OFFICE OF STATE PERSONNEL
Sgt. Gerry R. Mouzon v. Crime Control & Public Safety, NC State Highway 02 OSP 0392 Gray 06/15/06
Patrol, and Brian Beatty, Secretary CC & PS
Sgt. Gerry R. Mouzon v. Crime Control & Public Safety, NC State Highway 02 OSP 1036 Gray 06/15/06
Patrol, and Brian Beatty, Secretary CC & PS
Georgia Warren v. DOT 02 OSP 1911 Wade 08/08/06
Georgia Warren v. DOT 02 OSP 2179 Wade 08/08/06
Ricky Dixon v. County of Buncombe 03 OSP 0822 Lassiter 01/26/07 21:18 NCR 1648
Emily Flores v. College of Agriculture and Life Sciences NC State 04 OSP 1518 Lassiter 10/13/06
Isaiah Green, Jr v. DMV 05 OSP 0500 Morrison 11/02/06
C.W. McAdams v. DMV 05 OSP 0626 Morrison 11/02/06
Charles H. Boykin, Jr. v. Halifax County Health Dept. 05 OSP 0851 Gray 09/15/06
Tiffany Bowick-Richardson v. Fayetteville State University 05 OSP 0901 Lassiter 08/23/06
Hank L. Silverthorne v. DOT, Bridge Maintenance (Division One) 05 OSP 0291 Gray 05/11/06
Jeffrey Michael Quinn v. Dept. of Crime Control and Public Safety, 05 OSP 1012 Elkins 08/04/06 21:06 NCR 527
State Highway Patrol
Deena Ward v. Columbus Co. Dept. of Social Services 05 OSP 1017 Lassiter 06/23/06
Alma Chinita Trotter v. DHHS, Public Health Department 05 OSP 1183 Chess 06/01/06
Clayton Richardson v. Winston-Salem State University 05 OSP 1343 Mann 01/09/07
Tonita Derr Dawkins v. DOC, Alexander Correctional Institution 05 OSP 1449 Gray 07/27/06
Thomas H. Jones v. NC State Highway Patrol, Dept. of Crime Control 05 OSP 1495 Chess 05/17/06
& Public Safety
Eleanor J. Parker v. DHHS, Dorothea Dix Hospital 05 OSP 1527 Owens 01/19/07 21:18 NCR 1653
W. Frank Etheridge v. DOA, State Capital Police 05 OSP 1771 Lassiter 08/03/06 21:06 NCR 536
Sandra Harris v. DOT 05 OSP 1886 Lassiter 07/13/06
Marisa Lail Setzer v. Department of Public Instruction 05 OSP 1963 Morrison 08/02/06
Melissa H. Bailey v. DOT 05 OSP 2119 Wade 06/28/06
Michael D. Bognanowicz v. NC Wildlife Resources Commission 05 OSP 2024 Bryan 05/18/06
Pamela C. Granger v. UNC-CH 06 OSP 0007 Gray 12/22/06 21:18 NCR 1676
Malcolm Shelton Davis v. DHHS 06 OSP 0015 Smith 09/12/06
Kamaria Smith v. DHHS 06 OSP 0130 Mann 06/06/06
Lisa A. Forbes v. Dorothea Dix Hospital 06 OSP 0134 Gray 03/29/06
Lisa A. Forbes v. Dorothea Dix Hospital 06 OSP 0135 Gray 03/29/06
Sharon B. Matthews v. DOT, DMV 06 OSP 0207 Elkins 10/23/06
Lelia J. Bailey v. Winston-Salem State University 06 OSP 0211 Chess 09/06/06
Reginald Powe v. Public Schools of NC State Board of Education, Dept of 06 OSP 0238 Lassiter 05/09/06
Public Instruction
Nita Bass v. Craven County Department of Social Services 06 OSP 0346 Lassiter 09/12/06
Lisa Green v. DOC 06 OSP 0379 Lassiter 06/02/06
James Walter Gibson v. DOT 06 OSP 0543 Gray 05/19/06
Caria Faulk v. Columbus Co. Dept. of Social Services 06 OSP 0546 Lassiter 07/06/06
Todd R. Holbrook v. DOT, DMV 06 OSP 0644 Gray 12/13/06
Thomasina Burrows v.DHHS, Div. of Vocational Rehabilitation Services/ 06 OSP 0665 Elkins 11/06/06
Independent Living Program
Robin D. Long v. UNC Greensboro 06 OSP 0684 Lassiter 06/27/06
Reginald Hargrave v. Lexington City Schools 06 OSP 0669 Lassiter 11/02/06
Rena Coltraine McLeod v. Guilford Co. Dept. of Public Health 06 OSP 0703 Wade 06/28/06
Jan-Lee Wells v. Fayetteville Sate 06 OSP 0731 Gray 08/10/06
Katrina Pittman v. DHHS, Division of Vocational Rehabilitation Services 06 OSP 0768 Wade 12/27/06
Pamela Y. Turner v. DHHS, Whitaker School 06 OSP 0787 Wade 12/29/06
Timothy Scott Reynolds v. Morrison Correctional Institution 06 OSP 0803 Lassiter 07/26/06
Geraldine Blackston-Ramos v. Maurice Boswell, Mary Washun, Cynthia 06 OSP 0831 Morrison 07/12/06
Chamblee, Phyllis Sharpe, Dennis Davis, Bill McNeal, Wake County
Public Schools/Human Resource Department/Preventive Services/
Partnership for Educational Success
Rick Van Kerkhove v. DOC 06 OSP 0851 Gray 08/25/06
Odessa D. Gwynn v. Caswell County Senior Center 06 OSP 0863 Wade 08/26/06
Walter Giese v. Onslow County Board of Health 06 OSP 0989 Gray 01/22/07
Connie W. Williams v. DOC, Division of Prisons 06 OSP 1028 Morrison 12/28/06
Juliana W. Smith v. Alamance-Caswell Area Mental Health, Developmental 06 OSP 1059 Lassiter 08/09/06
Disabilities, and Substance Abuse Authority
Dr. Mirian W. McIntosh v. Durham Co. Health Department 06 OSP 1060 Lassiter 08/09/06
Maria Olea-Lingg v. UNC-Health Care 06 OSP 1143 Lassiter 10/12/06
Alonzo Vann v. DOT 06 OSP 1145 Wade 12/29/06
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1631
Hattie Miller v. DOA, Food and Drug Protection Division 06 OSP 1278 Gray 02/06/07
Tamra M. Burroughs v. Div. of Services for the Deaf and Hard of Hearing 06 OSP 1280 Elkins 09/07/06
Febby Manuel v. DMA, DHHS 06 OSP 1282 Overby 01/29/07
Melvin Daniels v. DOC 06 OSP 1299 Elkins 12/11/06
Calvin D. Ellis v. Fayetteville State University 06 OSP 1336 Wade 12/08/06
James D. Abrams v. Craven Co. DOT 06 OSP 1358 Gray 10/13/06
Douise Morris v. DOC 06 OSP 1409 Gray 11/21/06
Claudette Johnson v. NCSU Dining 06 OSP 1509 Gray 12/07/06
Wendy Anderson v. Agricultural and Technical State University 06 OSP 1562 Elkins 01/05/07
Melvin Sutton v. DOT 06 OSP 1657 Gray 11/21/06
Sandra S. Denmark v. Dorothea Dix Hospital, DHHS 06 OSP 1685 Gray 01/16/07
James Ray Merrill v. Broughton Hospital 06 OSP 1767 Lassiter 12/13/06
Brenda Stroud v. DST 06 OSP 1722 Gray 01/18/07
Darian Lee Hybl v. Halifax Community College (HCC) 06 OSP 1773 Gray 12/14/06
Teresa S Weedon v. UNC-CH 06 OSP 1864 Elkins 02/22/07
Tabitha McAdoo v. UNCW 06 OSP 1881 Morrison 12/29/06
Todd Williams v. Appalachian State University 06 OSP 1895 Overby 02/05/07
Terry D. Moses v. DOT 06 OSP 2204 Gray 02/15/07
Tobias Guilluame v. Fayetteville State University 06 OSP 2257 Gray 02/16/07
Karen Denise Mikeal v. DHHS, Developmental Disabilities and Substance 06 OSP 2412 Gray 02/16/07
Abuse
Anthony W. Allen v. Wake County Human Service 06 OSP 2416 Overby 02/14/07
Katharine V. Raleigh Ph.D, MPH v. Disability Determination Services 07 OSP 0035 Overby 02/14/07
General Counsel
SECRETARY OF STATE
Regina H. Autry v. SOS 05 SOS 1774 Chess 11/28/06
Tisha L. Jones v. Dept. of Secretary of State 05 SOS 1987 Gray 05/19/06
Temeka A. Brooks v. Dept of Secretary of State 06 SOS 0276 Mann 05/26/06
Laksha England v. Dept. of SOS 06 SOS 0630 Mann 09/13/06
Brendalyn D. Blackmon v. Dept. of Secretary of State 06 SOS 0701 Wade 08/11/06
Jennifer Carol Daniels v. Dept. of SOS 06 SOS 1167 Lassiter 10/12/06
Mary P. Lee v. SOS 06 SOS 1329 Mann 01/12/07 21:18 NCR 1682
Gerald Haskins v. SOS, Notary Division 06 SOS 1605 Gray 01/03/07
UNC HOSPITALS
Linda Sisco v. UNC Hospitals 05 UNC 0781 Gray 05/09/06
Karen H. Moore v. UNC Hospitals 06 UNC 0351 Elkins 06/08/06
Krista Singletary v. UNC Hospitals 06 UNC 0468 Mann 10/12/06
Larry E. Rogers v. UNC Hospitals 06 UNC 0697 Elkins 07/31/06
Cynthia Lodestro v. UNC Hospitals 06 UNC 0707 Wade 08/11/06
Margaret Branham v. UNC Hospitals 06 UNC 0903 Elkins 09/07/06
Ta-Wanda & David Wilson v. UNC Hospitals 06 UNC 1084 Lassiter 09/12/06
Angel C. Carey v. UNC Hospitals 06 UNC 1146 Lassiter 09/07/06
Ricky Hayes v. UNC-CH 06 UNC 1426 Overby 12/01/06
Bonnie G. Cheek v. UNC-CH 06 UNC 1561 Gray 12/14/06
Regina H. Autry v. SOS
WELL CONTRACTOR'S CERTIFICATION COMMISSION
Stuart Spruill, Remediation Equipment Specialist Inc v. Well Contractor's 06 WCC 193 Gray 02/28/07
Certification Commission
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1632
STATE OF NORTH CAROLINA
COUNTY OF DAVIDSON
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
06 DHR 0810
FORSYTH MEMORIAL HOSPITAL, INC. )
d/b/a FORSYTH MEDICAL CENTER and )
COMMUNITY GENERAL HEALTH )
PARTNERS, INC. d/b/a THOMASVILLE )
MEDICAL CENTER, ) RECOMMENDED DECISION
) AND ORDER GRANTING
Petitioners, ) SUMMARY JUDGMENT IN
) PART AND DENYING IN PART
) (N.C. GEN STAT. §§ 1A-1,
vs. ) RULE 56; 150B-34B-34(c))
)
NORTH CAROLINA DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
DIVISION OF FACILITY SERVICES, )
CERTIFICATE OF NEED SECTION, )
)
Respondent, )
)
and )
)
NORTH CAROLINA BAPTIST HOSPITAL, )
LEXINGTON MEMORIAL HOSPITAL, INC. )
and HIGH POINT REGIONAL HEALTH )
SYSTEM, )
)
Respondent-Intervenors. )
)
On October 27 and October 30, 2006, the undersigned Administrative Law Judge (“ALJ”) heard the Motion for Summary
Judgment by Petitioners Forsyth Memorial Hospital, Inc. d/b/a Forsyth Medical Center (“Forsyth”) and Community General Health
Partners, Inc. d/b/a Thomasville Medical Center (“Thomasville”) (collectively referred to as “Petitioners”) filed September 11, 2006.
In their responses to this motion, Respondent and Respondent-Intervenors argued that summary judgment be entered against the
moving parties, Forsyth and Thomasville, and in favor of Respondent and Respondent-Intervenors, pursuant to Rule 56(c) of the
North Carolina Rules of Civil Procedure.
Based upon the briefs, arguments, pleadings, documents, exhibits and the record in this contested case, the undersigned
hereby enters this Recommended Decision granting in part and denying in part Petitioners’ Motion for Summary Judgment, and
granting in part and denying in part Respondent and Respondent-Intervenors' Motion for Summary Judgment pursuant to Rule 56(c).
APPEARANCES
For Petitioners Forsyth Memorial Hospital, Inc. d/b/a Forsyth Medical Center (“FMC” or “Forsyth”) and Community General Health
Partners, Inc. d/b/a Thomasville Medical Center (collectively “Petitioners”):
Noah H. Huffstetler, III
Denise M. Gunter
Nelson Mullins Riley & Scarborough, LLP
GlenLake One, Suite 200
4140 Parklake Avenue
Raleigh, NC 27612
For Respondent N.C. Department of Health and Human Services, Division of Facility Services, Certificate of Need Section (the “CON
Section or Agency”):
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21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1633
June S. Ferrell
Amy Bason
Angel Gray
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
For Respondent-Intervenor High Point Regional Health System (“High Point”):
Gary S. Qualls
Colleen M. Crowley
Kennedy Covington Lobdell & Hickman, L.L.P.
430 Davis Drive, Suite 400
Morrisville, NC 27560
For Respondent-Intervenor Lexington Memorial Hospital (“Lexington”):
Terrill Johnson Harris
Robert L. Wilson, Jr.
William W. Stewart, Jr.
Smith Moore LLP
P.O. Box 21927
Greensboro, NC 27420
APPLICABLE LAW
1. The procedural statutory law applicable to this contested case is the North Carolina Administrative Procedure Act (“APA”),
N.C. Gen. Stat. § 150B-1 et seq.
2. The substantive statutory law applicable to this contested case is the North Carolina Certificate of Need Law, N.C. Gen. Stat.
§ 131E-175, et seq.
3. The administrative regulations applicable to this contested case are the North Carolina Certificate of Need administrative
rule, 10A N.C.A.C. 14C.0100 et seq., and the Office of Administrative Hearings rules, 26 N.C.A.C. 3.0100 et seq.
BURDEN OF PROOF ON SUMMARY JUDGMENT
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of
law.” Thompson v. Three Guy Furniture Co., 122 N.C. App. 340, 344, 469 S.E.2d 583, 585 (1996) (quoting N.C. Gen. Stat. § 1A-1
Rule 56 (c)). The party moving for summary judgment has the burden of proving the lack of a triable issue of fact. Collingwood v.
G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). The evidence is viewed in the light most favorable to the
nonmoving party. Davis v. Town of Southern Pines, 116 N.C. App. 663, 666, 449 S.E.2d 240, 242 (1994). Summary judgment,
where appropriate, may be rendered against the moving party. N.C. Gen. Stat. § 1A-1 Rule 56(c).
ISSUES
On October 9, 2006, the undersigned issued an Order limiting the scope of discovery and governing the conduct of discovery
prior to the Summary Judgment hearing (hereinafter the “Discovery Order”). (Resp. Ex. 15) As part of this Discovery Order,
Respondent and Respondent-Intervenors were permitted to conduct discovery on the following issues:
(1) Was the architect’s estimate of the cost of Petitioners’ project included in the Notice “certified” within the meaning
of Section 131E-178(d)?
(2) Did the Notice include information regarding the fair market value of the equipment proposed to be acquired by
Petitioners sufficient for the purposes of Section 131E-178(d)?
(3) Was the architect’s estimate of the cost of Petitioners’ proposed project obtained more than sixty days before
Petitioners incurred an obligation for the capital expenditure to which the estimate related as required by Section 131E-
178(d)?
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21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1634
(4) Was the Notice submitted within thirty days of the date on which Petitioner made a capital expenditure exceeding
the capital expenditure minimum as required by Section 131E-178(d)?
(5) Did the cost overrun experienced by Petitioners on their proposed project result from changes in the project
undertaken subsequent to the architect’s estimate of its cost?
Based upon consideration of the oral arguments, briefs, pleadings, documents, and exhibits, and the entire record in this
proceeding, the undersigned makes the following:
FINDINGS OF UNDISPUTED FACT
Identification of Parties
(1) Petitioner Forsyth Memorial Hospital, Inc., d/b/a Forsyth Medical Center (hereinafter FMC) is a non-profit
corporation organized under Chapter 55A of the North Carolina General Statutes. FMC has its principal place of business in
Forsyth County, North Carolina. FMC operates a general acute care hospital in Winston-Salem, Forsyth County, North
Carolina.
(2) Petitioner Community General Health Partners, Inc. d/b/a Thomasville Medical Center (hereinafter TMC) is a non-profit
corporation organized under Chapter 55A of the North Carolina General Statutes. TMC has its principal place of
business in Davidson County, North Carolina. TMC operates a general acute care hospital in Thomasville, Davidson County,
North Carolina. FMC and TMC are affiliated hospitals that are controlled by the same corporate parent, Novant Health, Inc.
(“Novant”).
(3) Respondent North Carolina Department of Health and Human Services, Division of Facility Services, Certificate of
Need Section (hereinafter Agency) is an agency of the State of North Carolina and is subject to the contested case provisions
of the North Carolina Administrative Procedure Act (“APA”). The Agency is authorized by Article 9, Chapter 131E of the
North Carolina General Statutes to administer the Certificate of Need (“CON”) Act.
(4) Respondent-Intervenors High Point Regional Health System (hereinafter High Point) is a North Carolina non-profit
corporation and is licensed by the State of North Carolina as an acute care hospital. High Point has its principal place of
business in High Point, Guilford County, North Carolina.
(5) Respondent-Intervenor North Carolina Baptist Hospital (hereinafter Baptist) is a North Carolina non-profit
corporation and is licensed by the State of North Carolina as an acute care hospital. Baptist has its principal place of business
in Winston-Salem, Forsyth County, North Carolina.
(6) Respondent-Intervenor Lexington Memorial Hospital, Inc. (hereinafter Lexington) is a North Carolina non-profit
corporation and is licensed by the State of North Carolina as an acute care hospital. Lexington has its principal place of
business in Lexington, Davidson County, North Carolina.
Correspondence and Agency Review Determinations
In a letter dated December 19, 2005, FMC first advised the CON Section that FMC had been proceeding without a CON to
acquire a linear accelerator, which would be installed at TMC and operated under TMC's hospital license. (Resp. Ex. 1, Agency File,
pp. 1-2)
SUMMARY OF UNDISPUTED FACTS
The following facts are not in dispute:
(1) FMC operates a non-profit, general acute care hospital in Winston-Salem. See Petition for Contested Case in 06
DHR 0810, ¶ 1. Thomasville operates a non-profit, general acute care hospital in Thomasville. Id. at ¶ 2. Forsyth and
Thomasville are affiliated hospitals that are controlled by the same non-profit corporate parent, Novant Health, Inc. Id.
(2) A “linear accelerator” is defined by N.C. Gen. Stat. § 131E-176(14b1) to be “a machine used to produce ionizing
radiation in excess of 1,000,000 electron volts in the form of a beam of electrons or photons to treat cancer patients.” A
linear accelerator is used to provide radiation therapy to cancer patients. 2006 SMFP at 99 (attached as Exhibit 1 to
Petitioners’ Motion for Summary Judgment).
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21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1635
(3) Presently, there is no linear accelerator located in Davidson County. Id. at 104-05. In the 2006 State Medical
Facilities Plan (“SMFP”) there is a need determination for one linear accelerator in Davidson County. Id. at 109, 111. That
need determination is not affected by the present case. Id. at 31.
(4) On May 31, 2005, FMC obtained a cost estimate certified by Nelson C. Soggs, an architect licensed to practice in
North Carolina (the “Certified Cost Estimate”) for the construction of a vault and related costs for the installation of a linear
accelerator at Thomasville (the “Project”). See Letter dated May 31, 2005 from Nelson C. Soggs to David W. McMillan,
attached as Exhibit 1 to Petition for Contested Case in 06 DHR 0810. The certified construction estimate was $561,492.00.
See Affidavits of Wayne Gregory and David W. McMillan, attached to Petitioners’ August 14, 2006 Notice of Filing.
(5) Mr. Soggs has been a licensed architect in the State of North Carolina since 1998 and has been practicing
architecture since 1990. See Soggs Deposition at 104-105, attached to Petitioners' October 26, 2006 Notice of Filing. His
architecture practice focuses exclusively on healthcare facilities. Id. at 27. In the past he has prepared estimates for various
projects at Novant including an ICU addition, a CT scan, and various other renovation projects. Id. at 12-13. He has worked
on approximately four other linear accelerator projects. Id. at 117. In preparing the May 31, 2005 estimate, he reviewed a
final cost estimate for a linear accelerator addition to Caldwell Memorial Hospital, as well as final cost estimate for a linear
accelerator project at Northern Hospital of Surry County. Id. at 107-08.
(6) FMC also obtained a price quotation from RS&A, Inc., a company that specializes in the sale and service of linear
accelerators, for the purchase of a linear accelerator to be installed at Thomasville (the “RSA Quote”). See Affidavit of
Kenneth Wolff, attached to Petitioners’ August 14, 2006 Notice of Filing. The linear accelerator cost $163,060.00. Id. See
also Invoice from RSA Inc., dated June 7, 2006, attached as Exhibit 1 to Petition for Contested Case in 06 DHR 0810. Thus,
the total expenditure for the Project was estimated to be $724,552.
(7) Upon completion of the Project, FMC intended to enter into an agreement with Thomasville that would allow FMC
to operate the linear accelerator at Thomasville’s facility in Thomasville. See Affidavits of Gabrielle Causby and Sharon
Murphy, attached to Petitioners’ August 14, 2006 Notice of Filing.
(8) N.C. Gen. Stat. § 131E-175 et seq. requires that healthcare providers obtain a CON prior to developing or offering
certain projects defined as ��new institutional health services.”
(9) The acquisition of “major medical equipment” is a “new institutional health service” under the CON Law. “Major
medical equipment” is defined under N.C. Gen. Stat. § 131E-176(14o) as:
a single unit or single system of components with related functions which is used to provide medical and
other health services and which costs more than seven hundred fifty thousand dollars ($750,000). In
determining whether the major medical equipment costs more than seven hundred fifty thousand dollars
($750,000), the costs of the equipment, studies, surveys, designs, plans, working drawings, specifications,
construction, installation, and other activities essential to acquiring and making operational the major medical
equipment shall be included.
(10) N.C. Gen. Stat. § 131E-178(d) provides a “safe harbor” for health care entities that begin a project based on a
certified cost estimate, only to have the actual cost of the project exceed the cost threshold for “major medical equipment”.
Specifically, N.C. Gen. Stat. § 131E-178(d) states:
Where the estimated cost of a proposed capital expenditure, including the fair market value of equipment acquired
by purchase, lease, transfer, or other comparable arrangement, is certified by a licensed architect or engineer to be
equal to or less than the expenditure minimum for capital expenditure for new institutional health services, such
expenditure shall be deemed not to exceed the amount for new institutional health services regardless of the actual
amount expended, provided that the following conditions are met:
(1) The certified estimated cost is prepared in writing 60 days or more before the obligation for the capital expenditure
is incurred. Certified cost estimates shall be available for inspection at the facility and sent to the Department upon its
request.
(2) The facility on whose behalf the expenditure was made notifies the Department in writing within 30 days of the date
on which such expenditure is made if the expenditure exceeds the expenditure minimum for capital expenditures. The notice
shall include a copy of the certified cost estimate.
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21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1636
(11) Neither the statute itself nor any properly promulgated regulation defines the term “certified cost estimate” or
explains the requirements a cost estimate must meet in order to be considered “certified.” Nothing in N.C. Gen. Stat. § 131E-
178(d) requires that the certification be notarized, stamped or sealed to be effective.
(12) The Agency had not developed a form for health care entities to use in obtaining a certified cost estimate. See
Hoffman Deposition, Vol. II, at 52, attached to Petitioners’ August 14, 2006 Notice of Filing. The Agency had not
promulgated rules that refer to the form that a certified cost estimate under N.C. Gen. Stat. § 131E-178(d) must follow. Id. at
54.
(13) At the time of FMC’s purchase of the linear accelerator in June 2005, the acquisition of a linear accelerator did not
require a CON unless it constituted “major medical equipment.” Following FMC’s purchase, on August 26, 2005, the CON
law was amended to specifically define any acquisition of a linear accelerator to constitute “major medical equipment”
regardless of cost. See N.C. Sess. Laws 2005-325, § 1.
(14) On November 28, 2005, FMC first learned that the actual construction costs would exceed the original estimate. See
Affidavits of David W. McMillan and Wayne L. Gregory, attached to Petitioners’ August 14, 2006 Notice of Filing. The
increase in construction costs were due to the increase in the cost of construction materials that resulted from Hurricane
Katrina and other market forces, including the impact of construction in overseas markets such as China’s demand for certain
construction materials. Id. See also McMillan Deposition at 74, attached to Petitioners’ October 26, 2006 Notice of Filing.
(15) After FMC learned that the increase in cost of construction materials had driven the total cost of the installation of
the linear accelerator above the $750,000 threshold for “major medical equipment,” FMC attempted to reduce the cost of the
project by eliminating non-essential elements from the scope of construction. See Soggs Deposition at 60-61, 65-67, 113,
attached to Petitioners’ October 26, 2006 Notice of Filing. FMC eliminated a toilet room, a changing room, and portions of
the roof design that were not integral to the vault’s structural integrity. Id. at 52, 61 and 92.
(16) Despite FMC’s attempts to reduce costs, as of December 12, 2005, the revised total cost, including equipment and
construction costs, was $853,356.00. See Affidavit of David W. McMillan, attached to Petitioners’ August 14, 2006 Notice
of Filing.
(17) On December 19, 2005, in accordance with the provisions of N.C. Gen. Stat. § 131E-178(d), FMC provided written
notice (the “Notice”) to the Agency of the increased costs. See Exhibit 1 to Petition for Contested Case in 06 DHR 0810.
FMC included a copy of the Certified Cost Estimate in its Notice.
(18) N.C. Gen. Stat. § 131E-178(d) does not require the Agency to respond upon receiving the Notice. Likewise, it does
not require the proponent of the Project to wait after sending in the Notice before beginning the Project.
(19) On December 29, 2005, FMC issued a Notice to Proceed to Rentenbach Constructors to begin construction of the
vault and other necessary upfit at Thomasville. See McMillan Deposition, pps. 111-12, attached to Petitioners' October 26,
2006 Notice of Filing. This Notice to Proceed allowed the contractor to begin work on the project prior to the execution of
any contract. Id. Prior to the issuance of this Notice to Proceed, the contractor was not permitted to perform any work
related to the project. Id.
(20) On January 4, 2006, FMC entered into a construction contract to build the linear accelerator vault. See Affidavit of
David W. McMillan, attached to Petitioners’ August 14, 2006 Notice of Filing. Construction began the next day. Id.
(21) The Agency did not respond to FMC’s December 19, 2005 Notice until April 4, 2006 when FMC and Thomasville
received from the Agency two letters, each captioned as a “Cease and Desist Notice” (the “Cease and Desist Notices”). See
Exhibits 1 and 2 to Petition for Contested Case.
(22) The CON Section summarized its decision in the Review Determination letter of April 4, 2006 to FMC by stating:
… all conditions of N.C. Gen. Stat. § 131E-178(d) have not been met. Consequently, Forsyth Medical Center
failed to demonstrate the reported expenditure is “deemed not to exceed the amount” it originally provided for
the project. Because the total capital cost of the project is now expected to exceed $750, 000, the proposal
constitutes the acquisition of “major medical equipment” which is a “new institutional health service” that
requires a certificate of need.
(23) The second Review Determination letter of April 7, 2006, was issued to TMC and provides in pertinent part:
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1637
The installation and utilization of the linear accelerator at Thomasville Medical Center constitutes the
acquisition of a linear accelerator by Thomasville Medical Center because the arrangement with Forsyth
Medical Center is a “comparable arrangement” to a donation or transfer of the equipment to Thomasville
Medical Center. The acquisition is a “new institutional health service” that requires a certificate of need.
(24) At the time FMC received the cease and desist letters from the CON Section, all but $26,000 of the total capital
costs for the Project had been incurred. The vast majority of preparations necessary to obtain an occupancy permit had
already been completed. See Affidavit of David W. McMillan, attached to Petitioners’ August 14, 2006 Notice of Filing.
(25) Due to the delay between FMC’s Notice and the CON Section's Cease and Desist Notices, FMC had to make all
payments to its contractors under their respective contracts, despite the fact that not all work on the Project was completed.
(26) In its Cease and Desist Notice to FMC, the Agency stated as follows:
The CON Section is hereby giving notice to Forsyth that it must immediately cease and desist from the
development and offering of linear accelerator service on the linear accelerator purchased on June 7, 2005.
Forsyth may not use the linear accelerator purchased on June 7, 2005 without first obtaining a certificate of
need.
(27) TMC has not yet acquired the linear accelerator from FMC and any installation at TMC would post-date August 26,
2005.
(28) Effective August 26, 2005, the CON law was amended to require a CON for a linear accelerator, regardless of cost.
N.C. Gen. Stat. § 131E-176(14g), (16)fl.5a (eff. Aug. 26, 2005); 2005 N.C. Sess. Law 325, Senate Bill 740, § 1.
(29) Finding that the project was subject to the legal requirement of a CON under the terms of the law, both Review
Determination letters notified TMC and FMC that they should cease and desist from developing the project and offering
services associated with the project without first obtaining a CON. (Resp. Ex. 1, Agency File, pp. 32, 36) Otherwise, both
entities would face sanctions by the Agency.
(30) The CON Section’s Review Determination letters advised Petitioners of their administrative appeal rights in
accordance with N.C. Gen. Stat. § 150B-23(f). (Id.)
CONCLUSIONS OF LAW
Based on all the foregoing undisputed facts, the undersigned concludes as follows:
Summary Judgment Standard
(1) Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that that there is no genuine issue as to any material fact and that
any party is entitled to a judgment as a matter of law.” N.C. R. Civ. P. 56.
(2) “[A]n issue is genuine if it is supported by substantial evidence, which is that amount of relevant evidence necessary
to persuade a reasonable mind to accept a conclusion... [A]n issue is material if the facts alleged would constitute a legal
defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from
prevailing in the action.” Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002) (citations and
internal quotations omitted).
(3) An “administrative agency is a creature of the statute creating it and has only those powers expressly granted to it or
those powers included by necessary implication from the legislative grant of authority.” In re Williams, 58 N.C. App. 273,
279-80, 293 S.E.2d 680, 685 (1982), quoting In re Broad & Gales Creek Cmty. Ass'n, 300 N.C. 267, 280, 266 S.E.2d 645,
654 (1980).
(4) Under N.C. Gen. Stat. § 131E-188(a), the Agency’s authority is limited “to issue, deny or withdraw a certificate of
need or an exemption or to issue a certificate of need pursuant to a settlement agreement.”
CONTESTED CASE DECISIONS
21:18 NORTH CAROLINA REGISTER MARCH 15, 2007
1638
(5) N.C. Gen. Stat. § 131E-184 sets forth the only “exemptions” for certificates of need in Chapter 131E. The “safe
harbor” provision of § 131E-178(d) is not an “exemption” under § 131E-184 or § 131E-188(a).
(6) FMC’s Notice under § 131E-178(d) did not constitute an application for a certificate of need or a request for an
exemption.
(7) The purpose of the “safe harbor” created under § 131E-178(d) is to permit a provider to proceed with a project
which it reasonably believes, based on the estimate of a licensed professional, will not exceed the cost threshold for CON
review, without fear that its investment will be wasted if its costs unexpectedly increase.
(8) In its Cease and Desist Letters the Agency stated requirements which do not appear in the plain language of statute
131E-178(d) or in Agency rule or policy statement. As a result, FMC’s linear accelerator remains warehoused, and the vault
constructed for its operation remains empty.
FMC Complied with § 131E-178(d)
(9) With regard to whether Petitioners complied with § 131E-178(d), the decisive issues are as follows:
a. Was the architect’s estimate of the cost of FMC’s project included in the Petitioners’ December 19, 2005
letter, including attachments (the “Notice”), “certified” within the meaning of § 131E-178(d)?
b. Did the Notice include information regarding the fair market value of the equipment proposed to be
acquired by Petitioners sufficient for the purposes of § 131E-178(d)?
c. Was the architect’s estimate of the cost of Petitioners’ proposed project obtained more than sixty days
before Petitioners incurred an obligation for the capital expenditure to which the estimate related as required by §
131E-178(d)?
d. Was the Notice submitted within thirty days of the date on which Petitioner made a capital expenditure
exceeding the capital expenditure minimum as required by § 131E-178(d)?
e. Did the cost overrun experienced by Petitioners on their proposed project result from changes in the project
undertaken subsequent to the architect’s estimate of its cost?
Was the architect’s estimate of the cost of Petitioners’ project included in the Notice
“certified” within the meaning of § 131E-178(d)?
(10) The Agency has not developed a form for health care entities to use in obtaining a certified cost estimate. There are
no rules that refer to the form that a certified cost estimate under N.C. Gen. Stat. § 131E-178(d) must follow, and there are no
parameters for the format for which the applicant shall provide a certified cost estimate.
(11) In the absence of a statutory definition, the word “certify” should be interpreted according to its common meaning.
See Kroger Ltd. P’ship I v. Guastello, ___ N.C. App. ___, 628 S.E.2d 841 (2006). Accordingly, the word “certify” means “to
attest authoritatively” or “to present in formal communication.” Merriam-Webster’s Collegiate Dictionary 187 (10th ed.
2001).
(12) Mr. Soggs’ May 31, 2005 estimate is a certified estimate because his signature, appearing on the stationery of his
firm, is his certification and that the estimate was true and accurate to the best of his knowledge at the time he signed the
estimate. See Deposition of Nelson Soggs at 32, 106-07. His seal as an architect was not needed “since I placed my
signature on it, that was my means of certifying it. I've never placed a seal on any other estimate letter in the past that I
recall.” Id.
(13) The cost estimate provided by Peterson Associates was a formal communication conveying the architect’s good faith
estimate as to the cost of the Project, thus it constitutes a “certified cost estimate” within the meaning of § 131E-178(d).
(14) Section 131E-178(d) does not permit examination into the wisdom or correctness of a certified cost estimate. The
statute as written permits a hospital, such as Forsyth, to rely on the word of licensed architects without subjecting the
architects to additional scrutiny regarding the basis of their opinion. Accordingly, no consideration of evidence related to the
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basis for the certified cost estimate is required. Even in the absence of this requirement; however, the certified cost estimate
prepared by Peterson Architects was based upon actual cost data of contemporaneous and substantially similar projects.
(15) Subsection 131E-178(d) only requires a licensed architect to certify those costs which are, in fact, only estimates,
and does not require the architect to recite the cost of equipment provided by an independent vendor. In this case, only the
construction costs associated with the construction of the vault required estimating, thus the cost estimate provided by
Peterson Associates was “certified” within the meaning of § 131E-178(d).
Did the Notice include information regarding the fair market value of the equipment
proposed to be acquired by FMC sufficient for the purposes of § 131E-178(d)?
(16) The term “fair market value” is also not defined in the General Statutes. Court decisions make it clear that the term
has been interpreted to mean “[t]he price that a seller is willing to accept and a buyer is willing to pay on the open market and
in an arm's length transaction.” Susi v. Aubin, 173 N.C. App. 608, 612, 620 S.E.2d 682, 684 (2005), quoting Black's Law
Dictionary 1587 (8th ed. 2004).
(17) The evidence regarding whether the linear accelerator was sold for “fair market value” was provided by Kenneth
Wolff, who sold the linear accelerator to Forsyth. Mr. Wolff’s testimony establishes that RS&A sold this linear accelerator
for its fair market value and that RS&A does not sell linear accelerators below fair market value. See Wolff Deposition at
60-61. There is no genuine issue that Mr. Wolff’s testimony is inaccurate or unreliable.
(18) It is unnecessary to engage in any analysis of the costs of RS&A involved in the acquisition or refurbishing of the
linear accelerator. The statute does not require vendors to prove that the price charged for a piece of equipment is based on
any specific formula. Further, the statute does not subject vendors of equipment or materials used in any project under the
CON law to reveal confidential or proprietary information such as profit margins.
(19) The RS&A quote, attached to the Notice, provides reliable evidence of the fair market value of the linear
accelerator. Both RS&A and Forsyth were willing to enter into the transaction. The transaction was an arms-length
transaction.
(20) The issue is whether the price actually charged in this instance reflected the fair market value of the linear
accelerator, not whether a different price might have been charged under a different set of circumstances. RS&A was a
willing seller and Forsyth was a willing buyer and therefore the price agreed upon between RS&A and Forsyth for the linear
accelerator represents the fair market value of the linear accelerator. There is no evidence of any collusion between RS&A
and Forsyth, and Respondent and Respondent-Intervenors provided no evidence to the contrary. The evidence demonstrates
that the sale of the linear accelerator by RS&A to Forsyth was an arms-length transaction between parties of equal bargaining
power, thus the price established by their negotiation is conclusively fair.
(21) The Notice did include information regarding the fair market value of the equipment sufficient for the purposes of §
131E-178(d).
Was the architect’s estimate of the cost of FMC’s proposed project obtained more than sixty
days before FMC incurred an obligation for the capital expenditure to which the estimate
related as required by § 131E-178(d)?
(22) The acquisition of the linear accelerator alone at a cost of $163,000 was not a reportable event. At the time Forsyth
purchased the linear accelerator in June 2005, pursuant to the linear accelerator price quote from RS&A, it was not incurring
a capital expenditure for a new institutional health service because the cost of the Project was estimated by Forsyth’s
architects to be below $750,000, and thus it did not constitute a new institutional health service.
(23) Pursuant to and in compliance with § 131E-178(d)(1), on November 28, 2005 FMC became aware that the increase
in construction costs would cause the cost of the Project to exceed $750,000.00.
(24) Pursuant to and in compliance with § 131E-178(d)(1), it was on December 29, 2005 that FMC issued its Notice to
Proceed, and it was on this date that FMC incurred an obligation for a capital expenditure.
(25) Therefore, FMC did not incur an obligation for a capital expenditure, which is a new institutional health service as
required by N.C. Gen. Stat. § 131E-178(d), until more than 60 days after it received the May 31, 2005 estimate from Peterson
Associates or the June 7, 2005 quote from RS&A.
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Was the Notice submitted within thirty days of the date on which FMC made a capital
expenditure exceeding the capital expenditure minimum as required by § 131E-178(d)?
(26) FMC notified the Agency before FMC incurred an obligation for a capital expenditure that constitutes a new
institutional health service.
(27) FMC submitted the Notice to the Agency on December 19, 2005.
(28) FMC gave notice to proceed on the construction contract for the construction of the vault on December 29, 2005.
(29) The construction contract was the expenditure that caused FMC’s project to be above the capital expenditure
minimum.
(30) Therefore, the Notice to the Agency was submitted within thirty days of the date on which FMC made a capital
expenditure exceeding the capital expenditure minimum as required by § 131E-178(d).
Did the cost overrun experienced by FMC on the proposed project result from changes in
the project undertaken subsequent to the architect’s estimate of its cost?
(31) There was no evidence presented to indicate that the Project changed subsequent to the architect’s certified cost
estimate. From the time of the certified cost estimate until when construction began, the Project was always intended to be a
vault to house a linear accelerator at Thomasville Medical Center.
(32) Section 131E-178(d) does not require an exhaustive review of all construction-related materials generated by FMC’s
architects, or their contractors regarding the design or construction of this project. The statute does not require FMC to prove
that every element identical from the first creation of the certified cost estimate through preliminary design documents to the
final project. The issue is narrowly construed to examine whether the project changed in substance in a way unconnected
with the intent of the project as originally conceived. The intent of the statute is to prohibit health care providers from
initiating one project and later constructing a different project in a manner that avoids compliance with the CON law.
(33) FMC voluntarily notified the CON section of the existence of this project upon notice that the cost of the project had
increased above the threshold for a “new institutional health service.” The project as finally constructed (and nearly
completed) was substantially the same as the project that was originally intended in that the project was always designed to
be a vault to house a linear accelerator. Nelson Soggs established that substantial efforts were taken to reduce unnecessary
elements from the Project to reduce costs, but that no additions were made to the Project that would have resulted in an
increased cost. Reduction of costs is a goal of the CON law.
(34) The uncontroverted evidence before the undersigned indicates that the unexpected rise in construction costs was due
to the increase in costs related to construction materials, not due to changes in the project.
(35) The rise in the cost of construction materials was attributable to other market forces and not the result of changes in
the project undertaken subsequent to the architect’s estimate of its cost.
(36) Accordingly, the cost overrun experienced by FMC on their proposed project did not result from changes in the
project undertaken subsequent to the architect’s estimate of its cost.
FMC Cannot Relocate the Linear Accelerator to TMC Without a Certificate of Need
(37) N.C. Gen. Stat. § 131E-176(16)(f1)(5a), effective August 26, 2005, provides that a CON is required for:
The acquisition by purchase, donation, lease, transfer, or comparable arrangement of any of the following
equipment by or on behalf of any person:
. . .
5a. Linear Accelerator
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(38) The Agency interprets and applies this statute as requiring a CON when one entity acquires a linear accelerator and
then transfers and installs the linear accelerator for use by a separate entity after August 25, 2006. (Resp. Ex. 11, Hoffman
Depo, Vol. I, pp. 56-57; Resp. Ex. 2, Hoffman Aff., ¶¶ 4, 8-10) Applying the plain language of the statute, the Agency views
the transfer and installation as a donation, transfer or “comparable arrangement” by FMC to TMC, a separate entity, and
constitutes a second acquisition. (Id.) This was the same interpretation and application applied by the Agency in the
Mission/Asheville Hematology Final Agency Decision. (Resp. Ex. 20)
(39) The Agency’s interpretation is consistent with the plain language of N.C. Gen. Stat. § 131E-176(16)(f1)(5a) as well
as the law of corporations in North Carolina.
(40) The legislature used multiple words to convey the broad coverage of the statute. The use of the word “donation”
means no money has to transfer. The use of the word “transfer” indicates the equipment is provided to, supplied or located at
another place other than the location of its owner. The use of the word “comparable arrangement” indicates a broad intent by
the legislature and shows that the characterization of the arrangement is not determinative; instead, the inquiry is whether the
linear accelerator is being supplied, placed, used, installed at a location of a separate entity that is different and apart from the
entity that acquired that linear accelerator.
(41) Under the corporate laws of North Carolina, a corporation is an entity unto itself, with attendant legal rights and
duties. See N.C. Gen. Stat. §§ 55-1-40 and 55-3-02.
(42) There is no dispute that FMC and TMC are separate legal entities, are operated as separate legal entities, and are
separately licensed hospitals. (See Petition for Contested Case Hearing, ¶¶ 1,2; Resp. Exs. 24, 25, Excerpts from North
Carolina Secretary of State website) Under the plain language of Chapter 55 and N.C. Gen. Stat. § 131E-178(b), any transfer
of assets between FMC and TMC, including the proposed linear accelerator, represents a transfer of an asset between two
separate and distinct corporate entities.
(43) It is undisputed that the installation of the linear accelerator at TMC and resulting transfer of the linear accelerator
between FMC and TMC have yet to occur, and thus could only occur after the August 26, 2005 effective date of the change
in the CON law requiring a CON for the acquisition of a linear accelerator regardless of costs. Therefore, consistent with the
plain statutory language at issue, the installation and transfer of the proposed linear accelerator from FMC to TMC would
constitute “an acquisition by donation, lease, transfer, or comparable arrangement” of a new institutional health service on the
part of TMC under N.C. Gen. Stat. § 131E-178(b) and would require a CON.
RECOMMENDED DECISION
Based upon the foregoing undisputed facts and conclusions of law, it is the recommended decision of the undersigned that
Petitioners’ Motion for Summary Judgment be granted in part and denied in part in that FMC complied with the safe harbor provisions
and are entitled to the exemption as provided in G.S. § 131E-178(d), and Respondent and Respondent-Intervenors’ Motion for
Summary Judgment pursuant to Rule 56(c) be granted in part and denied in part in that FMC cannot transfer the linear acceleration to
TMC without a Certificate of Need.
ORDER AND NOTICE
The North Carolina Department of Health and Human Services will make the Final Decision in this contested case. N.C.
Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its
Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.
Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each
party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the
Final Decision. N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a
copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center,
Raleigh, NC 27699-6714.
IT IS SO ORDERED.
This _____ day of January, 2007.
__________________________________
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1642
Julian Mann III
Chief Administrative Law Judge
A copy of the foregoing was mailed to:
Noah H. Huffstetler, III
Nelson Mullins Riley & Scarborough, LLP
4140 Parklake Avenue
Raleigh, NC 27612
June S. Ferrell
Assistant Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
Gary S. Qualls
Kennedy Covington Lobdell & Hickman, LLC
Post Office Box 14210
Research Triangle Park, NC 27709
S. Todd Hemphill
Bode, Call & Stroupe, L.L.P.
Post Office Box 6338
Raleigh, NC 27628-6338
Terrill Johnson Harris
Smith Moore LLP
Post Office Box 21927
Greensboro, NC 27420
This the _____ day of January, 2007.
__________________________________
Office of Administrative Hearings
6714 Mail Service Center
R