North Carolina register, July 1998 - present

              NORTH CAROLINA
REGISTER
Volume 19, Issue 23
Pages 1816 - 1970
June 1, 2005
This issue contains documents officially filed
through May 10, 2005.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Dana Sholes, Publication Coordinator
Linda Dupree, Editorial Assistant
Julie Brincefield, Editorial Assistant
IN THIS ISSUE
I. IN ADDITION
Notice of Public Meeting – DENR ..........................1816 - 1817
Summary of Notice of Intent to Redevelop A
Brownfields Property
Bellevue Development, LLC ............................1818
Town of Fletcher...............................................1819
Tax Review Board Decisions...................................1820 - 1828
II. PROPOSED RULES
Agriculture
Plant Conservation Board.....................................1829 - 1833
Environment and Natural Resources
Coastal Resources Commission ...........................1889 - 1893
Environmental Management Commission ...........1862 - 1889
Health Services, Commission for ........................1893 - 1898
Health and Human Services
Facility Services ...................................................1844 - 1861
Health Services, Commission for .........................1834 - 1844
Insurance
Manufactured Housing Board ..............................1861 - 1862
III. APPROVED RULES.............................................1899 - 1936
Community Colleges
Environment and Natural Resources
Environmental Health
Environmental Management
Wildlife Resources
Health and Human Services
Medical Care Commission
Licensing Boards
Cosmetic Art Examiners, Board of
Nursing, Board of
Podiatry Examiners, Board of
Secretary of State
Securities Division
IV. RULES REVIEW COMMISSION.......................1937 - 1939
V. CONTESTED CASE DECISIONS
Index to ALJ Decisions............................................1940 - 1948
Text of Selected Decisions
04 OSP 0190.........................................................1949 - 1970
For the CUMULATIVE INDEX to the NC Register go to:
http://ncoah.com/register/CI.pdf
North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC
27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to
the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714.
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are
mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of
government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order.
Subchapters are optional classifications to be used by agencies when appropriate.
NCAC TITLES TITLE 21
LICENSING BOARDS
TITLE 24
INDEPENDENT AGENCIES
1 ADMINISTRATION
2 AGRICULTURE & CONSUMER SERVICES
3 AUDITOR
4 COMMERCE
5 CORRECTION
6 COUNCIL OF STATE
7 CULTURAL RESOURCES
8 ELECTIONS
9 GOVERNOR
10A HEALTH AND HUMAN SERVICES
11 INSURANCE
12 JUSTICE
13 LABOR
14A CRIME CONTROL & PUBLIC SAFETY
15A ENVIRONMENT &NATURAL RESOURCES
16 PUBLIC EDUCATION
17 REVENUE
18 SECRETARY OF STATE
19A TRANSPORTATION
20 TREASURER
21* OCCUPATIONAL LICENSING BOARDS
22 ADMINISTRATIVE PROCEDURES
(REPEALED)
23 COMMUNITY COLLEGES
24* INDEPENDENT AGENCIES
25 STATE PERSONNEL
26 ADMINISTRATIVE HEARINGS
27 NC STATE BAR
28 JUVENILE JUSTICE AND DELINQUENCY
PREVENTION
1 Acupuncture
2 Architecture
3 Athletic Trainer Examiners
4 Auctioneers
6 Barber Examiners
8 Certified Public Accountant Examiners
10 Chiropractic Examiners
11 Employee Assistance Professionals
12 General Contractors
14 Cosmetic Art Examiners
16 Dental Examiners
17 Dietetics/Nutrition
18 Electrical Contractors
19 Electrolysis
20 Foresters
21 Geologists
22 Hearing Aid Dealers and Fitters
25 Interpreter/Transliterator
26 Landscape Architects
28 Landscape Contractors
29 Locksmith Licensing
30 Massage & Bodywork Therapy
31 Marital and Family Therapy
32 Medical Examiners
33 Midwifery Joint Committee
34 Funeral Service
36 Nursing
37 Nursing Home Administrators
38 Occupational Therapists
40 Opticians
42 Optometry
44 Osteopathic Examination (Repealed)
45 Pastoral Counselors, Fee-Based Practicing
46 Pharmacy
48 Physical Therapy Examiners
50 Plumbing, Heating & Fire Sprinkler
Contractors
52 Podiatry Examiners
53 Professional Counselors
54 Psychology
56 Professional Engineers & Land Surveyors
57 Real Estate Appraisal
58 Real Estate Commission
60 Refrigeration Examiners
61 Respiratory Care
62 Sanitarian Examiners
63 Social Work Certification
64 Speech & Language Pathologists &
Audiologists
65 Therapeutic Recreation Certification
66 Veterinary Medical
68 Substance Abuse Professionals
69 Soil Scientists
1 Housing Finance
2 Agricultural Finance Authority
3 Safety & Health Review
Board
4 Reserved
5 State Health Plan Purchasing
Alliance Board
Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies.
NORTH CAROLINA REGISTER
Publication Schedule for January 2005 – December 2005
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
19:13 01/03/05 12/08/04 01/18/05 03/04/05 03/21/05 05/01/05 05/06 09/30/05
19:14 01/18/05 12/22/04 02/02/05 03/21/05 04/20/05 06/01/05 05/06 10/15/05
19:15 02/01/05 01/10/05 02/16/05 04/04/05 04/20/05 06/01/05 05/06 10/29/05
19:16 02/15/05 01/25/05 03/02/05 04/18/05 04/20/05 06/01/05 05/06 11/12/05
19:17 03/01/05 02/08/05 03/16/05 05/02/05 05/20/05 07/01/05 05/06 11/26/05
19:18 03/15/05 02/22/05 03/30/05 05/16/05 05/20/05 07/01/05 05/06 12/10/05
19:19 04/01/05 03/10/05 04/16/05 05/31/05 06/20/05 08/01/05 05/06 12/27/05
19:20 04/15/05 03/24/05 04/30/05 06/14/05 06/20/05 08/01/05 05/06 01/10/06
19:21 05/02/05 04/11/05 05/17/05 07/01/05 07/20/05 09/01/05 05/06 01/27/06
19:22 05/16/05 04/25/05 05/31/05 07/15/05 07/20/05 09/01/05 05/06 02/10/06
19:23 06/01/05 05/10/05 06/16/05 08/01/05 08/22/05 10/01/05 05/06 02/26/06
19:24 06/15/05 05/24/05 06/30/05 08/15/05 08/22/05 10/01/05 05/06 03/12/06
20:01 07/01/05 06/10/05 07/16/05 08/30/05 09/20/05 11/01/05 05/06 03/28/06
20:02 07/15/05 06/23/05 07/30/05 09/13/05 09/20/05 11/01/05 05/06 04/11/06
20:03 08/01/05 07/11/05 08/16/05 09/30/05 10/20/05 12/01/05 05/06 04/28/06
20:04 08/15/05 07/25/05 08/30/05 10/14/05 10/20/05 12/01/05 05/06 05/12/06
20:05 09/01/05 08/11/05 09/16/05 10/31/05 11/21/05 01/01/06 05/06 05/29/06
20:06 09/15/05 08/25/05 09/30/05 11/14/05 11/21/05 01/01/06 05/06 06/12/06
20:07 10/03/05 09/12/05 10/18/05 12/02/05 12/20/05 02/01/06 05/06 06/30/06
20:08 10/17/05 09/26/05 11/01/05 12/16/05 12/20/05 02/01/06 05/06 07/14/06
20:09 11/01/05 10/11/05 11/16/05 01/03/06 01/20/06 03/01/06 05/06 07/29/06
20:10 11/15/05 10/24/05 11/30/05 01/17/06 01/20/06 03/01/06 05/06 08/12/06
20:11 12/01/05 11/07/05 12/16/05 01/30/06 02/20/06 04/01/06 05/06 08/28/06
20:12 12/15/05 11/22/05 12/30/05 02/13/06 02/20/06 04/01/06 05/06 09/11/06
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.
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1816
Note from the Codifier: This Section contains public notices that are required to be published in the Register or have been
approved by the Codifier of Rules for publication.
NOTICE OF PUBLIC MEETING AND PUBLIC COMMENT PERIOD
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
DIVISION OF WASTE MANAGEMENT
HAZARDOUS WASTE SECTION
1646 MAIL SERVICE CENTER
RALEIGH, NORTH CAROLINA 27699-1646
(919) 508- 8400
Notice is hereby given of a public meeting and public comment period on the Remedial Recommendation Document for the former
Seaboard Chemical Corporation Facility and the City of High Point Riverdale Drive Landfill site located in Jamestown, North
Carolina, Guilford County. The purpose of the Remedial Recommendation Document is to present the remedy that is recommended
by the City of High Point, North Carolina and Seaboard Group II to address the containment and remediation of impacted soils and
ground water at the site. The proposed remedy will provide the containment and treatment necessary to ensure an effective and viable
remedy that is protective of public health, safety and the environment. A summary of the Document appears at the end of this notice*.
This is to notify the public of a Public Hearing to be held on Thursday, June 23, 2005 at 7:00 p.m. in the auditorium at Guilford
Technical Community College, located at 601 High Point Road, Jamestown, N. C. All interested parties will have an opportunity to
present oral and/or written statements concerning the proposed remedy. Five (5) minutes will be allotted per speaker.
The public comment period will begin on June 1, 2005 and extend through July 15, 2005. All comments received during the public
comment period or at the public meeting will be considered in the formulation of a final decision on the Remedy recommendation
document. Written comments regarding the Remedial Recommendation Document should be sent to the following address by July 15,
2005:
Mr. Robert Glaser
Hazardous Waste Section
N. C. Division of Waste Management
1646 Mail Service Center
Raleigh, NC 27699-1646
The Remedial Recommendation Document is available for review at the following location during office hours (9:00 a.m. – 4:00 p.m.)
Monday through Friday:
Division of Waste Management
Hazardous Waste Section
401 Oberlin Road, Suite 150, Room 21
Raleigh, North Carolina 27605
Call (919) 508-8400, extension 8564 for an appointment
The City of High Point will also maintain a copy of the Remedial Recommendation Document, as part of the administrative record, at
the High Point Public Library, 901 North Main Street, High Point. No appointment is necessary to review the Remedy
Recommendation Document during normal business hours (Library phone number is 336-883-3643).
* Summary of Remedial Recommendation Document
The proposed Remedy takes into consideration the findings of the Remedial Investigation (RI), the Feasiblity Study (FS) and
the Baseline Risk assessment (BRA) and the currently known technical limitations on remediation of dense, non-aqueous
phase liquids (“DNAPL”) in fractured bedrock. The proposed Remedy includes engineering and institutional controls along
with leachate collection, groundwater extraction and treatment for plume containment and contaminant reduction. The
proposed Remedy will control potential for off-site migration of impacted groundwater and leachate into the Deep River and,
once constructed, into Randleman Reservoir.
The proposed Remedy addresses these objectives through the following components:
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1817
1. Isolation of Landfill leachate and leachate-impacted groundwater to prevent its migration to the waters of the Deep River
and the Northern and Southern Intermittent Streams;
2. Stabilization of Landfill slopes and enhancement of the existing caps at the Landfill and the Seaboard Site;
3. Extraction of groundwater to contain plume migration and capture impacted groundwater recharge into the Deep River
and the Northern and Southern Intermittent Streams.
4. Treatment of extracted groundwater to reduce contaminant mass
5. The use of natural treatment processes, including constructed wetlands and upland phytoremediation systems, to provide
sustainable and cost-effective treatment of extracted groundwater;
6. Physical and chemical treatment, including air stripping, aeration and ozone-oxidation methods, to supplement the
natural treatment processes. A HiPOx treatment system, which uses hydroxyl radicals formed by the reaction of ozone
with hydrogen peroxide organic containment in the groundwater, is proposed for use at the Site. This system will
provide effective treatment during periods of time when the natural treatment systems are being started up
7. Continued use and maintenance of the existing fences and warning signs at the Site to restrict unauthorized access;
8. Permanent land use restrictions on the Seaboard Site and the property immediately across the Deep River from the Site
and the Landfill to prevent future uses of impacted groundwater or activities which could result in unacceptable risk
exposures;
9. Long term, periodic site inspections and agency reviews; and
10. Long-term, periodic groundwater and surface water monitoring.
NC DENR will provide auxiliary aids and services for disabled persons who wish to review the documents to comply with the
Americans with Disabilities Act. To receive special services, please contact Robert Glaser at the address above, via email at
robert.glaser@ncmail.net or by calling (919) 508-8541.
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1818
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Bellevue Development, LLC
Pursuant to N.C.G.S. § 130A-310.34, Bellevue Development, LLC has filed with the North Carolina Department of
Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Hillsborough,
Orange County, North Carolina. The Property consists of approximately 9.1 acres and is located at 200 through 210 South Nash
Street. Environmental contamination exists on the Property in the soil and groundwater. Bellevue Development, LLC has committed
itself to make no use of the Property other than for owner- or tenant-occupied residential apartments and related amenities. The
Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and Bellevue
Development, LLC, which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants
involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the
Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance
with G.S. 130A-310.35. The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at the Orange County Public
Library, 300 W. Tryon St., Hillsborough, NC 27278, by contacting Ms. Kim Sholar at that address or at (919) 245-2525; or at 401
Oberlin Rd., Raleigh, NC 27605 by contacting Ms. Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 508-
8411, where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents. Written
public comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of general
circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later. Written
requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. Thus, if
Bellevue Development, LLC, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a
newspaper of general circulation serving the area in which the brownfields property is located, and if it effects publication of this
Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public
meeting regarding this project and for submitting written public comments will commence on June 2, 2005. All such comments and
requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1819
SUMMARY OF NOTICE OF
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY
Town of Fletcher
Pursuant to N.C.G.S. § 130A-310.34, the Town of Fletcher has filed with the North Carolina Department of Environment and
Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Fletcher, Henderson County,
North Carolina. The Property consists of 28.77 acres on the east side of Howard Gap Road near U.S. Highway 25. The Property is
bordered to the north by railroad tracks and land that is partially vacant and partially agricultural; to the south by the facilities of
Asheville Maintenance and Construction, Inc., where equipment/supply storage and work related to electrical, carpentry and painting
contracting occur, and by property containing a building that houses the Park Ridge Medical Association medical practice; to the
southeast by Fletcher Community Park; to the east by land that is partially vacant and partially agricultural; and to the west by Howard
Gap Road. Environmental contamination exists on the Property in soil and groundwater. The Town of Fletcher has committed itself
to make no use of the Property other than for mixed commercial/residential redevelopment to include a town hall, commercial and
retail businesses, office space, green space with walking trails, and residential townhomes or condominiums. The Notice of Intent to
Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and the Town of Fletcher, which
in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants involved and their concentrations
in the media of the Property, (c) the above-stated description of the intended future use of the Property, and (d) proposed investigation
and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35. The full Notice
of Intent to Redevelop a Brownfields Property may be reviewed at Henderson County Public Library, Fletcher Branch, 120 Library
Road, Fletcher, NC 28732 by contacting Sherry Waldrop at (828) 687-1218; or at 401 Oberlin Rd., Raleigh, NC 27605 by contacting
Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 733-2801, ext. 336, where DENR will provide auxiliary aids
and services for persons with disabilities who wish to review the documents. Written public comments may be submitted to DENR
within 60 days after the date this Notice is published in a newspaper of general circulation serving the area in which the brownfields
property is located, or in the North Carolina Register, whichever is later. Publication in the North Carolina Register is scheduled for
June 1, 2005. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public
comments begins. Thus, if the Town of Fletcher, as it plans, publishes this Summary in the North Carolina Register after it publishes
the Summary in a newspaper of general circulation serving the area in which the brownfields property is located, and if it effects
publication of this Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests
for a public meeting regarding this project and for submitting written public comments will commence on August 1, 2005. All such
comments and requests should be addressed as follows:
Mr. Bruce Nicholson
Brownfields Program Manager
Division of Waste Management
NC Department of Environment and Natural Resources
401 Oberlin Road, Suite 150
Raleigh, North Carolina 27605
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1820
STATE OF NORTH CAROLINA BEFORE THE
TAX REVIEW BOARD
COUNTY OF WAKE
IN THE MATTER OF:
The Proposed Assessment of Sales and Use )
Tax for the period April 1, 1999 through )
March 31, 2002, by the Secretary of )
Revenue of North Carolina )
) ADMINISTRATIVE DECISION
) Number: 451
)
vs. )
)
EarthData International of North Carolina, LLC )
Taxpayer )
This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County,
North Carolina, in the office of the State Treasurer on Tuesday, April 13, 2004, upon a petition filed by EarthData International of
North Carolina, LLC (hereinafter "Taxpayer") for administrative review of the Final Decision of the Assistant Secretary of Revenue
sustaining the proposed use tax assessment for the period of April 1, 1999 through March 31, 2002.
Chairman Richard H. Moore, State Treasurer, presided over the hearing with ex officio member, Jo Anne Sanford, Chair,
Utilities Commission and duly appointed member, Noel L. Allen, Attorney at Law participating.
Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer, through counsel, appeals from the adverse decision by the Assistant
Secretary of Revenue issued on June 10, 2003 that sustained the assessment of use tax and interest, but waived the penalties imposed
against the Taxpayer in this matter.
STATEMENT OF CASE AND FACTS
The Taxpayer is a land surveying company with its corporate offices in High Point, North Carolina. The Taxpayer provides
aerial topographical mapping services within and without North Carolina. These services are nontaxable when ultimately sold to the
Taxpayer's customers. In the course of providing land surveying services to its customers, the Taxpayer purchases aerial photography,
undeveloped film, contract prints, negatives, diapositives, data tapes and compact disks, and thermal imagery from subcontractors that
include affiliate companies. After conducting an audit of the Taxpayer's records, the Department of Revenue proposed a use tax
assessment against the Taxpayer. The additional tax resulted from Taxpayer's purchases for use of aerial photography, undeveloped
film, geo-referenced imaging data in the form of a contract print, negative or diapositive and scanning information in the form of data
tapes or compact disks. After receiving the notice of assessment, the Taxpayer, through counsel, notified the Department of Revenue
that it objected to the assessment and requested an administrative hearing before the Secretary of Revenue. After conducting the
hearing, the Assistant Secretary of Revenue issued a final decision sustaining the proposed assessment of use tax and interest for the
period of April 1, 1999 through March 31, 2002. For good cause shown, the Assistant Secretary of Revenue waived the penalties that
were imposed against the Taxpayer. Thereafter, the Taxpayer filed a notice of intent and petition for administrative review of the
Assistant Secretary of Revenue's final decision with the Board.
ISSUES
The issues considered by the Assistant Secretary of Revenue regarding this matter are stated as follows:
1. Are the Taxpayer's purchases of undeveloped aerial photography film, contract prints, negatives, diapositives, data tapes and
compact disks considered purchases of taxable property for use or purchase of nontaxable services?
2. Is the Taxpayer a disregarded entity, and therefore not subject to sales tax, based on its corporate structure and the corporate
structure of its vendors?
3. Are the penalties and interest on the Taxpayer's assessment correctly proposed and assessed?
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1821
EVIDENCE
Pursuant to N.C. Gen. Stat. § 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials
that the parties presented at the hearing before the Assistant Secretary.
FINDINGS OF FACTS
The Board reviewed and considered the findings of fact entered by the Assistant Secretary of Revenue in his decision
regarding this matter.
CONCLUSIONS OF LAW
The Board reviewed and considered the conclusions of law made by the Assistant Secretary of Revenue in his decision
regarding this matter.
DECISION
The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105-
241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part:
(b2). "The Board shall confirm, modify, reverse, reduce or
increase the assessment or decision of the Secretary."
Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the
Taxpayer to rebut that presumption. In order to rebut the presumption, the Taxpayer must offer evidence to show that the assessment
is not proper. The record in this matter shows that the Taxpayer is a single member limited liability company that provides aerial
topographical services. In order to provide its nontaxable aerial topographical services, the Taxpayer purchases undeveloped aerial
photography film, geo-referenced imaging data in the form of contact prints, negatives, or diapositives and scanning information in the
form of data tapes or compact disks. These items are purchased from subcontractors, including corporate entities that are affiliates of
the Taxpayer.
In the petition filed with the Board, the Taxpayer contends that the subcontractors are providing services that are an integral
step in the process of photogrammetry and the services rendered by the subcontractors are not taxable under North Carolina's Use Tax.
The Taxpayer further contends that any tangible personal property produced by these subcontractors is merely incidental to the
professional services being rendered and the tangible items are merely an instrument of the service being performed. Thus, the
Taxpayer argues that the "true object" of the transactions at issue is information and not the transfer of tangible personal property. In
the alternative, the Taxpayer argues that the assessment must be reduced because it includes transactions between affiliate companies
that do not constitute a taxable event under North Carolina's Sales and Use Tax.
In the final decision, the Assistant Secretary determined that the "true object" of the transactions in question is the contact
prints, negatives, diapositives, data tapes and compact disks because these are the items that the Taxpayer must obtain and use in order
to provide the nontaxable topographical services. The Assistant Secretary ruled that Taxpayer purchases tangible personal property
used in providing aerial topographical services and is therefore subject to the use taxes. The Assistant Secretary also ruled that the
transactions between the Taxpayer and its wholly owned sister limited liability companies are taxable transactions. Thus, the
Assistant Secretary rejected the argument that the transactions between the Taxpayer and its affiliates do not constitute a taxable event.
The Board, after conducting an administrative hearing in this matter, and after considering the petition, the briefs, the whole
record and the Assistant Secretary's final decision, concludes that the findings of fact made by the Assistant Secretary in the decision
were fully supported by competent evidence in the record; that the Assistant Secretary's conclusions of law were fully supported by
the findings of fact; therefore the Assistant Secretary's final decision should be confirmed.
WHEREFORE, THE BOARD ORDERS that the Assistant Secretary of Revenue's final decision be confirmed in every
respect.
Made and entered into the 9th day of September 2004.
TAX REVIEW BOARD
Richard H. Moore, Chairman
State Treasurer
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1822
Jo Anne Sanford, Member
Chair, Utilities Commission
Noel L. Allen, Appointed Member
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1823
STATE OF NORTH CAROLINA BEFORE THE
TAX REVIEW BOARD
COUNTY OF WAKE
IN THE MATTER OF:
)
)
The Proposed Assessment of Unauthorized )
Substance Tax dated January 23, 2003 ) ADMINISTRATIVE DECISION
by the Secretary of Revenue of the ) NUMBER 452
State of North Carolina )
)
vs. )
)
Gwendolyn Fennell-Wimes, Taxpayer )
This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County,
North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Gwendolyn Fennell-
Wimes (hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on
August 5, 2003, sustaining the proposed tax assessment plus interest against the Taxpayer.
Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the
Taxpayer by U.S. Mail sent to the Taxpayer’s last known address of 701 Chandler Road, Durham, NC 27703. The notice alleged that
on January 19, 2003, the Taxpayer was in unauthorized possession of 60 dosages of oxycodone, to which no tax stamps were affixed.
The notice proposed an assessment comprised of excise tax in the amount of $1,200.00, penalties totaling $480.00, and interest in the
amount of $6.00, for a total proposed tax liability of $1,686.00.
The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat.
105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the
proposed assessment. On August 5, 2003, the Assistant Secretary issued the final decision, which adjusted the proposed assessment
against the Taxpayer to $1,200.00 plus interest. Thereafter, the Taxpayer timely filed a petition for administrative review of the final
decision with the Board.
ISSUES
1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed?
2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax?
EVIDENCE
Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials
that the parties presented at the hearing before the Assistant Secretary.
DECISION
The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105-
241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part:
(b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.”
On August 25, 2004, the Board conducted an administrative hearing in this matter and considered the petition, the brief, the
record, the Assistant Secretary’s final decision, the arguments presented at the administrative hearing and the documentary evidence
filed with the Board on August 25, 2004. Upon review of the additional evidence filed by the Taxpayer on August 25, 2004, the
Board deems this evidence material to the issues and determines that it is appropriate to remand this matter to the Assistant Secretary
where the evidence shall be taken and ruled upon by the Assistant Secretary. Thus, the Board, in its discretion, remands this matter to
the Assistant Secretary for a further proceeding to consider the Taxpayer’s additional evidence.
THEREFORE, it is the decision of the Board to REMAND this matter to the Assistant Secretary for a further proceeding.
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1824
Made and entered into the 23rd day of November , 2004.
TAX REVIEW BOARD
Richard H. Moore, Chairman
State Treasurer
Jo Anne Sanford, Member
Chair, Utilities Commission
Noel L. Allen, Appointed Member
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1825
STATE OF NORTH CAROLINA BEFORE THE
TAX REVIEW BOARD
COUNTY OF WAKE
IN THE MATTER OF: )
)
The Proposed Assessment of Unauthorized )
Substance Tax dated September 19, 2002 ) ADMINISTRATIVE DECISION
by the Secretary of Revenue of the ) NUMBER 453
State of North Carolina )
)
vs. )
)
Gary Richard Taylor, )
Taxpayer )
This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County,
North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Gary Richard Taylor
(hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on May 28,
2003.
Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the
Taxpayer by U.S. Mail sent to the Taxpayer at his last known address of 27 Edney Rd., Arden, NC 28704. Based on the Taxpayer’s
unauthorized possession of 3,924.68 grams of marijuana on September 17, 2002, to which no tax stamps were affixed, the notice
proposed an assessment comprised of excise tax in the amount of $13,737.50, penalties totaling $5,495.00, and interest in the amount
of $68.69, for a total proposed tax liability of $19,301.19.
The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat.
105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the
proposed assessment. On May 28, 2004, the Assistant Secretary issued the final decision, adjusting the proposed assessment of tax to
$5,390.00 plus interest for the period at issue. Thereafter, the Taxpayer timely filed a petition for administrative review of the final
decision with the Board.
ISSUES
1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed?
2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax?
EVIDENCE
Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials
that the parties presented at the hearing before the Assistant Secretary. Based upon the Board’s review of the documentation, those
documents are incorporated by reference and are made a part of this administrative decision.
FINDINGS OF FACT
The Board reviewed and considered the following findings of fact entered by the Assistant Secretary in his decision regarding
this matter:
1. Assessment of Unauthorized Substance Tax was made against the Taxpayer on September 17, 2002, in the sum of
$13,737.50 tax, $5,495.00 penalty and $68.69 interest, for a total proposed liability of $19,301.19, based on possession of
3,924.68 grams of marijuana.
2. The Taxpayer made timely objection and application for a hearing.
3. On September 17, 2002, the Taxpayer was in constructive possession of 3,924.68 grams of marijuana.
4. No tax stamps were purchased for or affixed to the marijuana as required by law.
CONCLUSIONS OF LAW
The Board reviewed and considered the following conclusions of law entered by the Assistant Secretary in his decision
regarding this matter:
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1826
1. A preponderance of the evidence supports the foregoing findings of fact, therefore the Taxpayer is subject to an assessment
of unauthorized substances tax.
2. The forty-cent tax rate authorized in G.S. 105-113.107(a)(1) applies to “harvested marijuana stems and stalks that have been
separated from and are not mixed with any other parts of the marijuana plant.” Growing marijuana plants, by definition, do
not quality for this tax rate. See G.S. 105-113.106(6) and G.S. 105-113.107(a)(1a).
3. Without authorization, the Taxpayer possessed 1,100 grams of marijuana on September 17, 2002, and was therefore a
“dealer” as that term is defined in N.C.G.S. 105-113.106(3).
4. The Taxpayer is liable for excise tax in the amount of $3,850.00, penalties totaling $1,540.00, and interest until date of full
payment.
DECISION
The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105-
241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part:
(b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.”
Assessments of tax are presumed to be correct and the taxpayer has the burden to show that the assessment is not proper. It is
the function of this Board, upon administrative review, to review the record and determine whether the final decision is proper based
upon the evidence presented at the hearing before the Assistant Secretary. Pursuant to N.C. Gen. Stat. 105-241.1(a), a proposed tax
assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption,
the Taxpayer must offer evidence to show that the assessment is not proper.
Thus, the Board having conducted an administrative hearing in this matter, and having considered the petition, the briefs, the
whole record and the Assistant Secretary’s final decision, concluded that the findings of fact made by the Assistant Secretary were
supported by competent evidence in the record; that based upon the findings of fact; therefore, the decision of the Assistant Secretary
should be confirmed.
WHEREFORE, THE BOARD ORDERS that the Assistant Secretary’s final decision be confirmed in every respect.
Made and entered into the 23rd day of November , 2004.
TAX REVIEW BOARD
______________________________
Richard H. Moore, Chairman
State Treasurer
______________________________
Jo Anne Sanford, Member
Chair, Utilities Commission
_______________________________
Noel L. Allen, Appointed Member
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1827
STATE OF NORTH CAROLINA BEFORE THE
TAX REVIEW BOARD
COUNTY OF WAKE
IN THE MATTER OF: )
)
The Proposed Assessment of Unauthorized )
Substance Tax dated December 15, 2002 ) ADMINISTRATIVE DECISION
by the Secretary of Revenue of the ) NUMBER 454
State of North Carolina )
)
vs. )
)
Sammy Mark Smith, Taxpayer )
This Matter was heard before the Regular Tax Review Board (hereinafter “Board”) in the City of Raleigh, Wake County,
North Carolina, in the office of the State Treasurer, on Wednesday, August 25, 2004, pursuant to the petition of Sammy Mark Smith
(hereinafter “Taxpayer”) for administrative review of the final decision entered by the Assistant Secretary of Revenue on July 24,
2003, sustaining the proposed tax assessment plus penalty and interest against the Taxpayer.
Pursuant to N.C.G.S. 105-113.111 and N.C.G.S. 105-241.1(a)&(b), a notice of proposed assessment was delivered to the
Taxpayer by leaving a copy of same at the Taxpayer’s last known address of 281 Allen Dr., Forest City, NC 28043. The notice
alleged that on December 15, 2002, the Taxpayer was in unauthorized possession of 2,940 dosages of methamphetamine, to which no
tax stamps were affixed. The notice proposed an assessment comprised of excise tax in the amount of $14,700.00, penalties totaling
$5,880.00, and interest in the amount of $39.20, for a total proposed tax liability of $20,619.20. The Taxpayer’s mother paid the tax
in full, $14,700.00, within 48 hours, therefore the penalty and interest are waived and the hearing is essentially a request for a refund.
The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. Pursuant to N.C. Gen. Stat.
105-260.1, Eugene J. Cella, Assistant Secretary, conducted a hearing upon Taxpayer’s timely application and objection to the
proposed assessment. On July 24, 2003, the Assistant Secretary issued the final decision, which adjusted the proposed assessment
based on possession of 2,940 dosages of methamphetamine, comprised of excise tax in the amount of $14,700.00 which is deemed to
be proper under the law and the facts, and is sustained and declared to be final, and the Taxpayer’s request for a refund was rightly
denied.
ISSUES
1. Did the Taxpayer have actual and/or constructive possession of marijuana without the proper tax stamps affixed?
2. Is the Taxpayer subject to the assessment of unauthorized substance excise tax?
EVIDENCE
Pursuant to N.C. Gen. Stat. 105-241.2(b), the Board reviewed all the documents, records, data, evidence and other materials
that the parties presented at the hearing before the Assistant Secretary in this matter.
DECISION
The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. 105-
241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part:
(b2). “The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.”
On August 25, 2004, the Board conducted an administrative hearing in this matter and considered the petition, the brief, the
record, the Assistant Secretary’s final decision, the arguments presented at the administrative hearing and the documentary evidence
filed with the Board. Upon review of the additional evidence filed by the Taxpayer concerning the SBI lab report, the Board deems
this evidence material to the issues and determines that it is appropriate to remand this matter to the Assistant Secretary where the
evidence shall be taken and ruled upon by the Assistant Secretary. Thus, the Board, in its discretion, remands this matter to the
Assistant Secretary for a further proceeding to consider the Taxpayer’s additional evidence.
THEREFORE, it is the decision of the Board to REMAND this matter to the Assistant Secretary for further consideration.
IN ADDITION
19:23 NORTH CAROLINA REGISTER June 1, 2005
1828
Made and entered into the 23rd day of November , 2004.
TAX REVIEW BOARD
______________________________
Richard H. Moore, Chairman
State Treasurer
______________________________
Jo Anne Sanford, Member
Chair, Utilities Commission
_______________________________
Noel L. Allen, Appointed Member
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1829
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 2 – DEPARTMENT OF AGRICULTURE AND
CONSUMER SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Plant Conservation Board intends to amend the rules cited
as 02 NCAC 48F .0301-.0302; .0304.
Proposed Effective Date: October 1, 2005
Instructions on How to Demand a Public Hearing: (must be
requested in writing within 15 days of notice): Any person may
request a public hearing on the proposed rules by submitting a
request in writing no later than June 16, 2005, to Marj Boyer,
Secretary, NC Plant Conservation Board, 1060 Mail Service
Center, Raleigh NC 27699-1060.
Reason for Proposed Action: Proposed rule changes would
add and delete various plant species to lists of protected plants
based on review of their current status by the Plant
Conservation Board.
Procedure by which a person can object to the agency on a
proposed rule: Any person may object to the proposed rules by
submitting a written statement of objection(s) to Marj Boyer,
Secretary, NC Plant Conservation Board, 1060 Mail Service
Center, Raleigh, NC 27699-1060.
Written comments may be submitted to: Marj Boyer,
Secretary, NC Plant Conservation Board, 1060 Mail Services
Center, Raleigh, NC 27699-1060, phone (919)733-3610 ext.
250, fax (919)716-1041, email marj.boyer@ncmail.net.
Comment period ends: August 1, 2005
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
State
Local
Substantive (>$3,000,000)
None
CHAPTER 48 - PLANT INDUSTRY
SUBCHAPTER 48F - PLANT CONSERVATION
SECTION .0300 - ENDANGERED PLANT SPECIES LIST:
THREATENED PLANT SPECIES LIST: LIST OF
SPECIES OF SPECIAL CONCERN
02 NCAC 48F .0301 ENDANGERED PLANT SPECIES
LIST
The North Carolina Plant Conservation Board hereby establishes
the following list of endangered plant species:
(1) Adiantum capillus-veneris -- L. capillus-veneris
L.
Venus Hair Fern;
(2) Aeschynomene virginica -- (L.) virginica (L.)
B.S.P.
Sensitive Jointvetch;
(3) Agrostis mertensii -- Trin. mertensii Trin.
Arctic bentgrass;
(4) Amorpha georgiana var. georgiana -- Wilbur
georgiana Wilbur
Georgia Indigo-bush;
(5) Amphicarpum muehlenbergianum (J.A.
Schultes) A.S. Hitchc.
Florida Goober Grass, Blue Maidencane;
(5)(6) Arethusa bulbosa -- L. bulbosa L.
Bog Rose;
(6)(7) Asplenium heteroresiliens -- W.H.
heteroresiliens W.H. Wagner
Carolina Spleenwort;
(7)(8) Asplenium monanthes -- L. monanthes L.
Single-sorus Spleenwort;
(8)(9) Aster parviceps -- (Burgess) parviceps
(Burgess) Mackenzie & Bush
Glade Aster;
(9)(10) Bryocrumia andersonii -- (Bartr.) andersonii
(Bartr.) Anders.
Gorge Moss;
(10)(11) Buckleya distichophylla -- (Nuttall)
distichophylla (Nuttall) Torrey
Piratebush;
(11)(12) Calamagrostis cainii -- Hitchcock cainii
Hitchcock
Cain's Reed Grass;
(12)(13) Calopogon multiflorus -- Lindl. multiflorus
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1830
Lindl.
Many-flowered Grass-Pink;
(14) Canoparmelia amabilis Heiman & Elix
Worthy Shield Lichen;
(13)(15) Cardamine micranthera -- Rollins micranthera
Rollins
Small-anthered Bittercress;
(14)(16) Carex aenea -- Fernald aenea Fernald
Fernald's Hay Sedge;
(15)(17) Carex barrattii -- Schweinitz barrattii
Schweinitz and Torrey
Barratt's Sedge;
(16)(18) Carex lutea -- LeBlond lutea LeBlond
Golden Sedge;
(17)(19) Carex oligosperma -- Michx. oligosperma
Michx.
Few-seeded Sedge;
(18)(20) Carex radfordii -- Gaddy radfordii Gaddy
Radford's sedge;
(19)(21) Carex schweinitzii -- Dewey schweinitzii
Dewey ex Schweinitz
Schweinitz's Sedge;
(20)(22) Carya myristiciformis -- (Michaux
myristiciformis (Michaux f.) Nuttall
Nutmeg hickory;
(21)(23) Cheilolejeunea evansii -- (M. evansii (M.
Taylor) Schust.
A liverwort;
(22)(24) Chrysoma pauciflosculosa -- (Michx.)
pauciflosculosa (Michx.) Greene
Woody Goldenrod;
(23)(25) Conioselinum chinense -- (L.) chinense (L.)
B.S.P.
Hemlock Parsley;
(24)(26) Cystopteris tennesseensis -- Shaver
tennesseensis Shaver
Tennessee Bladderfern;
(25)(27) Dalibarda repens -- L. repens L.
Robin Runaway;
(26)(28) Delphinium exaltatum -- Aiton exaltatum
Aiton
Tall Larkspur;
(29) Dichanthelium caerulescens (Hack. ex Hitchc.)
Correll
Blue Witch Grass;
(27)(30) Echinacea laevigata -- (Boynton laevigata
(Boynton and Beadle) Blake
Smooth Coneflower;
(28)(31) Eriocaulon lineare -- Small lineare Small
Linear Pipewort;
(32) Eriocaulon texense Koern.
Texas Hatpins;
(29)(33) Filipendula rubra -- (Hill) rubra (Hill) B.L.
Robins.
Queen-of-the-Prairie;
(34) Fimbristylis perpusilla Harper ex Small &
Britt.
Harper's Fimbry;
(35) Gaylussacia nana (Gray) Small
Confederate Huckleberry;
(30)(36) Gentianopsis crinita -- (Froelich) crinita
(Froelich) Ma
Fringed Gentian;
(31)(37) Geum radiatum -- Michaux radiatum Michaux
Spreading Avens;
(32)(38) Grammitis nimbata -- (Jenm.) nimbata (Jenm.)
Proctor
Dwarf Polypody Fern;
(33)(39) Gymnocarpium appalachianum -- Pryer
appalachianum Pryer & Haufler
Appalachian Oak Fern;
(34)(40) Helenium brevifolium -- (Nutt.) brevifolium
(Nutt.) Wood
Littleleaf Sneezeweed;
(35)(41) Helenium vernale -- Walt. vernale Walt.
Spring Sneezeweed;
(42) Helianthemum nashii Britt.
Florida scrub frostweed;
(43) Helianthus floridanus Gray ex Chapman
Florida Sunflower;
(36)(44) Helianthus schweinitzii -- T. schweinitzii T. &
G.
Schweinitz's Sunflower;
(37)(45) Hexastylis contracta -- Blomquist contracta
Blomquist
Mountain Heartleaf;
(38)(46) Hierochloe odorata -- (L.) odorata (L.) Beauv.
Holy Grass;
(39)(47) Houstonia purpurea var. montana -- (Small)
montana (Small) Terrell
Mountain Bluet;
(40)(48) Hudsonia montana -- Nutt. montana Nutt.
Mountain Golden Heather;
(41)(49) Hydrastis canadensis -- L. canadensis L.
Goldenseal;
(42)(50) Hymenophyllum tayloriae -- Farrar tayloriae
Farrar & Raine
Gorge filmy fern;
(51) Isoetes microvela D.F. Brunton
A Quillwort;
(43)(52) Isotria medeoloides -- (Pursh) medeoloides
(Pursh) Raf.
Small Whorled Pogonia;
(44)(53) Juncus caesariensis -- Coville caesariensis
Coville
Rough Rush;
(45)(54) Juncus trifidus ssp. carolinianus -- Hamet
carolinianus Hamet Ahti
One-flowered Rush;
(46)(55) Lilium pyrophilum -- M. pyrophilum M. W.
Skinner & Sorrie
Sandhills bog lily;
(47)(56) Lindera melissaefolia -- (Walter) melissaefolia
(Walter) Blume
Southern Spicebush;
(57) Lipocarpha micrantha (Vahl) G. Tucker
Small-flowered Hemicarpha;
(48)(58) Lophiola aurea -- Ker-Gawl. aurea Ker-Gawl.
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1831
Golden Crest;
(49)(59) Lysimachia asperulaefolia -- Poiret
asperulaefolia Poiret
Rough-leaf Loosestrife;
(50)(60) Lysimachia fraseri -- Duby fraseri Duby
Fraser's Loosestrife;
(51)(61) Minuartia godfreyi -- (Shinners) godfreyi
(Shinners) McNeill
Godfrey's Sandwort;
(52)(62) Minuartia uniflora -- (Walter) uniflora
(Walter) Mattfield
Single-flowered Sandwort;
(53)(63) Muhlenbergia torreyana -- (Schultes) torreyana
(Schultes) Hitchcock
Torrey's Muhly;
(54)(64) Myrica gale -- L. gale L.
Sweet Gale;
(55)(65) Narthecium americanum -- Ker americanum
Ker
Bog Asphodel;
(56)(66) Orbexilum macrophyllum -- (Rowlee
macrophyllum (Rowlee ex Small) Rydberg
Bigleaf Scurfpea;
(57)(67) Orthotrichum keeverae -- Crum keeverae
Crum & Anders.
Keever's Bristle Moss;
(58)(68) Oxypolis canbyi -- (Coult. canbyi (Coult. &
Rose) Fern.
Canby's Cowbane;
(59)(69) Panicum hirstii -- Swallen hirstii Swallen
Hirst's Panic Grass;
(60)(70) Parnassia caroliniana -- Michaux caroliniana
Michaux
Carolina Grass-of-Parnassus;
(71) Paronychia herniariodes (Michx.) Nutt.
Michaux's Whitlow-wort;
(61)(72) Pellaea wrightiana -- Hooker wrightiana
Hooker
Wright's Cliff-brake Fern;
(62)(73) Plantago cordata -- Lam. cordata Lam.
Heart-leaf Plantain;
(63)(74) Plantago sparsiflora -- Michaux sparsiflora
Michaux
Pineland Plantain;
(64)(75) Platanthera integrilabia -- (Correll) integrilabia
(Correll) Leur
White Fringeless Orchid;
(65)(76) Poa paludigena -- Fernald paludigena Fernald
& Wiegand
Bog Bluegrass;
(66)(77) Pteroglossaspis ecristata -- (Fernald) ecristata
(Fernald) Rolfe
Eulophia;
(67)(78) Ptilimnium nodosum -- (Rose) nodosum
(Rose) Mathias
Harperella;
(68)(79) Pyxidanthera barbulata var. brevifolia --
(Wells) brevifolia (Wells) Ahles
Wells' Pyxie-moss;
(69)(80) Rhus michauxii -- Sargent michauxii Sargent
Michaux's Sumac;
(70)(81) Rhynchospora crinipes -- Gale crinipes Gale
Mosquito Beak Sedge;
(71)(82) Rhynchospora macra -- (C.B. macra (C.B.
Clarke) Small
Large Beak Sedge;
(83) Rhynchospora odorata C. Wright ex Griseb.
Fragrant Beaksedge;
(72)(84) Rhynchospora thornei -- Kral thornei Kral
Thorne's Beaksedge;
(73)(85) Rudbeckia heliopsidis -- Torr. heliopsidis
Torr. & Gray
Sun-facing coneflower;
(74)(86) Sagittaria fasciculata -- E.O. fasciculata E.O.
Beal
Bunched Arrowhead;
(75)(87) Sarracenia jonesii -- Wherry jonesii Wherry
Mountain Sweet Pitcher Plant;
(76)(88) Sarracenia oreophila -- (Kearney) oreophila
(Kearney) Wherry
Green Pitcher Plant;
(77)(89) Schwalbea americana -- L. americana L.
Chaffseed;
(90) Scirpus flaccidifolius (Fern.) Schuyler
Reclining Bulrush;
(78)(91) Sedum pusillum -- Michaux pusillum Michaux
Puck's Orpine;
(79)(92) Sedum rosea -- (L.) rosea (L.) Scop.
Roseroot;
(80)(93) Senecio schweinitzianus -- Nuttall
schweinitzianus Nuttall
Schweinitz's Groundsel;
(81)(94) Shortia galacifolia -- T. galacifolia T. & G.
Oconee Bells;
(82)(95) Sisyrinchium dichotomum -- Bicknell
dichotomum Bicknell
Reflexed Blue-eyed Grass;
(83)(96) Solidago plumosa -- Small plumosa Small
Yadkin River Goldenrod;
(84)(97) Solidago ptarmicoides -- (Nees) ptarmicoides
(Nees) Boivin
Prairie Goldenrod;
(85)(98) Solidago spithamaea -- M.A. spithamaea M.A.
Curtis
Blue Ridge Goldenrod;
(86)(99) Solidago villosicarpa -- LeBlond villosicarpa
LeBlond
Coastal goldenrod;
(87)(100) Sphagnum fuscum -- (Schimp.) fuscum
(Schimp.) Klinggr.
Brown Peatmoss;
(88)(101) Sphenolobopsis pearsoni -- (Sprengel)
pearsoni (Sprengel) Schuster & Kitagawa
A liverwort;
(102) Spigelia marilandica (L.) L.
Pink Root;
(89)(103) Spiraea virginiana -- Britton virginiana
Britton
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1832
Virginia Spiraea;
(90)(104) Sporobolus heterolepis -- Gray heterolepis
Gray
Prairie Dropseed;
(91)(105) Stylisma pickeringii var. pickeringii --
(Torrey pickeringii (Torrey ex M.A. Curtis)
Gray
Pickering's Morning Glory;
(92)(106) Talinum mengesii -- W. mengesii W. Wolf
Large-flowered fameflower;
(93)(107) Thalictrum cooleyi -- Ahles cooleyi Ahles
Cooley's Meadowrue;
(94)(108) Tortula ammonsiana -- Crum ammonsiana
Crum & Anders.
Ammon's Tortula;
(109) Tridens ambiguus (Ell.) J.A. Schultes
Pinelands Triodia;
(95)(110) Trillium pusillum -- Michaux pusillum
Michaux
Carolina Least Trillium;
(96)(111) Trisetum spicatum var. molle -- (Michaux)
molle (Michaux) Beal
Soft Trisetum. Trisetum;
(112) Utricularia resupinata B.D. Greene ex Bigelow
Northeastern Bladderwort;
(113) Warea cuneifolia (Muhl. ex Nutt.) Nutt.
Carolina Pineland-cress;
(114) Zephyranthes simpsonii Chapman
Rain Lily.
Authority G.S. 106-202.15.
02 NCAC 48F .0302 THREATENED PLANT SPECIES
LIST
The North Carolina Plant Conservation Board hereby establishes
the following list of threatened plant species:
(1) Amaranthus pumilus -- Raf. pumilus Raf.
Seabeach Amaranth;
(2) Amorpha georgiana var. confusa -- Wilbur
confusa Wilbur
Savanna Indigo-bush;
(3) Aster georgianus --Alexander georgianus
Alexander
Georgia Aster;
(4) Astragalus michauxii --(Kuntze) michauxii
(Kuntze) F.J. Herm.
Sandhills Milkvetch;
(5) Baptisia minor -- Lehmann minor Lehmann
Prairie Blue Indigo;
(6) Cacalia rugelia -- (Shuttl. rugelia (Shuttl. ex
Chapm) Barkley & Cronq.
Rugel's Ragwort;
(7) Camassia scilloides -- (Raf.) scilloides (Raf.)
Cory
Wild Hyacinth;
(8) Carex conoidea -- Willd. conoidea Willd.
Cone-shaped Sedge;
(9) Carex exilis -- Dewey exilis Dewey
Coastal Sedge;
(10) Eleocharis halophila -- Fern. halophila Fern. &
Brack.
Salt Spikerush;
(11) Eupatorium resinosum -- Torr. resinosum
Torr. ex DC.
Resinous Boneset;
(12) Fimbristylis perpusilla -- Harper perpusilla
Harper ex Small & Britton
Harper's Fringe-rush;
(13) Geum geniculatum -- Michaux geniculatum
Michaux
Bent Avens;
(14) Glyceria nubigena -- W.A. nubigena W.A.
Anderson
Smoky Mountain Mannagrass;
(15) Gymnoderma lineare -- (Evans) lineare
(Evans) Yoshimura & Sharp
Gnome Finger Lichen;
(16) Helonias bullata -- L. bullata L.
Swamp Pink;
(17) Hexastylis naniflora -- Blomquist naniflora
Blomquist
Dwarf-flowered Heartleaf;
(18) Hexastylis rhombiformis Gaddy
French Broad Heartleaf;
(18)(19) Ilex collina -- Alexander collina Alexander
Long-stalked Holly;
(19)(20) Isoetes piedmontana -- (Pfeiffer) piedmontana
(Pfeiffer) Reed
Piedmont Quillwort;
(20)(21) Liatris helleri -- (Porter) helleri (Porter) Porter
Heller's Blazing Star;
(21)(22) Lilaeopsis carolinensis -- Coult. carolinensis
Coult. & Rose
Carolina Lilaeopsis;
(22)(23) Lilium grayi -- Watson grayi Watson
Gray's Lily;
(23)(24) Lindera subcoriacea -- Wofford subcoriacea
Wofford
Bog spicebush;
(24)(25) Lobelia boykinii -- T. boykinii T. & G.
Boykin's lobelia;
(25)(26) Macbridea caroliniana -- (Walt.) caroliniana
(Walt.) Blake
Carolina Bogmint;
(26)(27) Menyanthes trifoliata -- L. trifoliata L.
Buckbean;
(27)(28) Myriophyllum laxum -- Schuttlew. laxum
Schuttlew. ex Chapman
Loose Watermilfoil;
(28)(29) Parnassia grandifolia -- DC. grandifolia DC.
Large-leaved Grass-of-Parnassus;
(29)(30) Platanthera integra -- (Nuttall) integra (Nuttall)
Gray ex Beck
Yellow Fringeless Orchid;
(30)(31) Platanthera nivea -- (Nutt.) nivea (Nutt.) Luer
Snowy Orchid;
(31)(32) Portulaca smallii -- P. smallii P. Wilson
Small's Portulaca;
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1833
(32)(33) Quercus ilicifolia -- Wangenheim ilicifolia
Wangenheim
Bear oak;
(33)(34) Rhexia aristosa -- Britton aristosa Britton
Awned Meadow-beauty;
(35) Rhynchospora pleiantha (Kukenth.) Gale
Coastal Beaksedge;
(34)(36) Ruellia humilis -- Nutt. humilis Nutt.
Low Wild-petunia;
(35)(37) Sabatia kennedyana -- Fern. kennedyana Fern.
Plymouth Gentian;
(38) Sarracenia minor Walt.
Hooded Pitcher Plant;
(36)(39) Schisandra glabra -- (Brickel) glabra (Brickel)
Rehder
Magnolia-vine;
(37)(40) Schlotheimia lancifolia -- Bartr. lancifolia
Bartr.
Highlands Moss;
(38)(41) Senecio millefolium -- T. millefolium T. & G.
Divided-leaf Ragwort;
(39)(42) Solidago verna -- M.A. verna M.A. Curtis
Spring-flowering Goldenrod;
(40)(43) Spiranthes longilabris -- Lindl. longilabris
Lindl.
Giant Spiral Orchid;
(41)(44) Sporobolus teretifolius -- Harper teretifolius
Harper
Wireleaf Dropseed;
(42)(45) Thelypteris simulata -- (Davenp.) simulata
(Davenp.) Nieuwl.
Bog Fern;
(43)(46) Trichomanes boschianum -- Sturm
boschianum Sturm ex Bosch
Appalachian Filmy-fern;
(44)(47) Trichomanes petersii -- A. petersii A. Gray
Dwarf Filmy-fern;
(45)(48) Trillium discolor -- Wray discolor Wray ex
Hook.
Mottled Trillium;
(46)(49) Utricularia olivacea -- Wright olivacea Wright
ex Grisebach
Dwarf Bladderwort.
Authority G.S. 106-202.15.
02 NCAC 48F .0304 PLANT SPECIES OF SPECIAL
CONCERN
(a) Special Concern Endangered Plant Species are those species
that appear on both the Endangered Species List and on the
Special Concern Species List and that can be offered for
propagation to propagators under permit.
(1) Cystopteris tennesseensis -- Shaver
tennesseensis Shaver
Tennessee Bladderfern;
(2) Delphinium exaltatum -- Aiton exaltatum
Aiton Tall Larkspur;
(3) Echinacea laevigata -- (Boynton laevigata
(Boynton & Beadle) Blake Smooth
Coneflower;
(4) Gentianopsis crinita -- (Froehlich) crinita
(Froehlich) Ma
Fringed Gentian;
(5) Geum radiatum -- Michaux radiatum Michaux
Spreading Avens;
(6) Hydrastis canadensis -- L. canadensis L.
Goldenseal, Orangeroot;
(7) Kalmia cuneata -- Michaux
White Wicky;
(8)(7) Lilium pyrophilum -- Skinner pyrophilum
Skinner & Sorrie Sandhills bog lily;
(9)(8) Pellaea wrightiana -- Hooker wrightiana
Hooker
Wright's Cliff-brake Fern;
(10)(9) Rhus michauxii -- Sargent michauxii Sargent
Michaux's Sumac;
(11)(10) Sarracenia jonesii -- Wherry jonesii Wherry
Mountain Sweet Pitcher Plant;
(12)(11) Sarracenia oreophila -- (Kearney) oreophila
(Kearney) Wherry
Green Pitcher Plant;
(13)(12) Shortia galacifolia -- T. galacifolia T. & G.
Oconee Bells. Bells;
(13) Spigelia marilandica (L.) L.
Pink Root;
(14) Zephyranthes simpsonii Chapman
Rain Lily.
(b) Special Concern Threatened Plant Species are those species
that appear on both the Threatened Species List and on the
Special Concern Species List and that can be offered for
propagation to propagators under permit.
(1) Eupatorium resinosum -- Torr. resinosum
Torr. ex DC.
Resinous Boneset;
(2) Helonias bullata -- L. bullata L.
Swamp Pink;
(3) Liatris helleri -- (Porter) helleri (Porter) Porter
Heller's Blazing Star;
(4) Lilium grayi -- Watson grayi Watson
Gray's Lily;
(5) Sabatia kennedyana -- Fern. kennedyana Fern.
Plymouth Gentian;
(6) Sarracenia minor Walt.
Hooded Pitcher Plant;
(6)(7) Schisandra glabra -- (Brickel) glabra (Brickel)
Rehder
Magnolia Vine.
(c) Special Concern Not Endangered or Threatened Plant
Species are those species that appear on the Special Concern
Species List but do not appear on the Endangered Species List or
the Threatened Species List and that are unlawful to distribute,
sell or offer for sale except as otherwise provided in 02 NCAC
48F .0305 and .0306.
(1) Dionaea muscipula -- Ellis muscipula Ellis
Venus Flytrap;
(2) Panax quinquefolius -- L. quinquefolius L.
Ginseng.
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1834
Authority G.S. 106-202.15.
TITLE 10A – DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Division of Facility Services intends to amend the rules cited
as 10A NCAC 14C .1602, .1901-.1902, .2101, .2103, .2202-
.2203, .2701-.2705, .3703 and .3802.
Proposed Effective Date: October 1, 2005
Public Hearing:
Date: July 21, 2005
Time: 2:00 p.m.
Location: Division of Facility Services, Council Building,
Room 201, Dorothea Dix Campus, 701 Barbour Drive, Raleigh,
NC
Reason for Proposed Action: Several subject matters are
addressed in the State Medical Facilities Plan (SMFP). Each
year, changes to existing Certificate of Need (CON) rules are
required to ensure consistency with the SMFP. Several CON
rules were amended under temporary action to coincide with the
2005 SMFP's effective date of January 1, 2005. The specific
subject areas being addressed by these amended rules are
Cardiac Catheterization and Cardiac Angioplasty Equipment,
Radiation Therapy Equipment, Surgical Services and Operating
Rooms, End-State Renal Disease Services, Magnetic Resonance
Imaging (MRI) Scanner, Positron Emission Tomography (PET)
Scanner, and Acute Care Beds. These rules were amended
through temporary procedures and this rule-making action will
facilitate the permanent rule-making process.
Procedure by which a person can object to the agency on a
proposed rule: An individual may object to the agency on the
proposed rules by submitting written comments on the proposed
rule. They may also object by attending the public hearing and
personally voice their objections during that time.
Written comments may be submitted to: Mercidee Benton,
Division of Facility Services, 2701 Mail Service Center, Raleigh,
NC 27699-2701, phone (919) 855-3750, fax (919) 733-2757,
email mercidee.benton@ncmail.net.
Comment period ends: August 1, 2005
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
State
Local
Substantive (>$3,000,000)
None
CHAPTER 14 – DIRECTOR, DIVISION OF
FACILITY SERVICES
SUBCHAPTER 14C – CERTIFICATE OF NEED
REGULATIONS
SECTION .1600 – CRITERIA AND STANDARDS FOR
CARDIAC CATHETERIZATION
EQUIPMENT AND CARDIAC
ANGIOPLASTY EQUIPMENT
10A NCAC 14C .1602 INFORMATION REQUIRED OF
APPLICANT
(a) An applicant that proposes to acquire cardiac catheterization
or cardiac angioplasty equipment shall use the acute care
facility/medical equipment application form.
(b) The applicant shall provide the following additional
information based on the population residing within the
applicant's proposed cardiac catheterization service area:
(1) the projected annual number of cardiac
catheterization procedures, by CPT or ICD-9-
CM codes, by classification of classified by
adult diagnostic, adult therapeutic and
pediatric cardiac catheterization procedure, to
be performed in each cardiac catheterization
room for each of the first 12 calendar quarters
the facility during each of the first three years
of operation following completion of the
proposed project, including the methodology
and assumptions used for these projections;
(2) documentation of the applicant's experience in
treating cardiovascular patients at the facility
during the past 12 months, including:
(A) the number of patients receiving
stress tests;
(B) the number of patients receiving
intravenous thrombolytic therapies;
(C) the number of patients presenting in
the Emergency Room or admitted to
the hospital with suspected or
diagnosed acute myocardial
infarction;
(D) the number of patients referred to
other facilities for cardiac
catheterization procedures or open
heart surgery procedures, by type of
procedure; and
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1835
(E) the number of diagnostic and
therapeutic cardiac catheterization
procedures performed during the
twelve month period reflected in the
most recent licensure form on file
with the Division of Facility Services;
(3) the number of cardiac catheterizationpatients
patients, classified by adult diagnostic, adult
therapeutic and pediatric, from the proposed
cardiac catheterization service area who are
projected to have a cardiac catheterization
procedure that the applicant proposes to serve
by patient's county of residence in each of the
first 12 quarters three years of operation,
including the methodology and assumptions
used for these projections;
(4) the number of patients from the proposed
primary cardiac catheterization service area
who are projected to have a cardiac
catheterization procedure by patients' county
of residence in each of the first 12 quarters of
operation, including the methodology and
assumptions used for these projections;
(5)(4) documentation of the applicant's projected
sources of patient referrals that are located in
the proposed cardiac catheterization service
area, including letters from the referral sources
that demonstrate their intent to refer patients to
the applicant for cardiac catheterization
procedures;
(6)(5) evidence of the applicant's capability to
communicate with emergency transportation
agencies and with an established
comprehensive cardiac services program;
(7)(6) the number and composition of cardiac
catheterization teams available to the
applicant;
(8)(7) documentation of the applicant's in-service
training or continuing education programs for
cardiac catheterization team members;
(9)(8) a written agreement with a comprehensive
cardiac services program that specifies the
arrangements for referral and transfer of
patients seen by the applicant and that includes
a process to alleviate the need for duplication
in cardiac catheterization procedures;
(10)(9) a written description of patient selection
criteria including referral arrangements for
high-risk patients;
(11)(10) a copy of the contractual arrangements for the
acquisition of the proposed cardiac
catheterization equipment or cardiac
angioplasty equipment, including itemization
of the cost of the equipment; and
(12)(11) documentation that the cardiac catheterization
equipment and cardiac angioplasty equipment
and the procedures for operation of the
equipment are designed and developed based
on the American College of
Cardiology/American Heart Association
Guidelines for Cardiac Catheterization
Laboratories (1991) report.
Authority G.S. 131E-177(1); 131E-183.
SECTION .1900 – CRITERIA AND STANDARDS FOR
RADIATION THERAPY EQUIPMENT
10A NCAC 14C .1901 DEFINITIONS
These definitions shall apply to all rules in this Section:
(1) "Approved linear accelerator" means a linear
accelerator which was not operational prior to
the beginning of the review period.
(2) "Complex Radiation treatment" is equal to 1.0
ESTV and means: treatment on three or more
sites on the body; use of special techniques
such as tangential fields with wedges,
rotational or arc techniques; or use of custom
blocking.
(3) "Equivalent Simple Treatment Visit [ESTV]"
means one basic unit of radiation therapy
which normally requires up to fifteen (15)
minutes for the uncomplicated set-up and
treatment of a patient on a megavoltage
teletherapy unit including the time necessary
for portal filming.
(4) "Existing linear accelerator" means a linear
accelerator in operation prior to the beginning
of the review period.
(5) "Intermediate Radiation treatment" means
treatment on two separate sites on the body,
three or more fields to a single treatment site
or use of multiple blocking and is equal to 1.0
ESTV.
(6) "Linear accelerator" means MRT equipment
which is used to deliver a beam of electrons or
photons in the treatment of cancer patients.
(7) "Linear accelerator service area" means a
single or multi-county area as used in the
development of the need determination in the
applicable State Medical Facilities Plan.
(8) "Megavoltage unit" means MRT equipment
which provides a form of teletherapy that
involves the delivery of energy greater than, or
equivalent to, one million volts by the
emission of x-rays, gamma rays, electrons, or
other radiation.
(9) "Megavoltage radiation therapy (MRT)"
means the use of ionizing radiation in excess
of one million electron volts in the treatment
of cancer.
(10) "MRT equipment" means a machine or energy
source used to provide megavoltage radiation
therapy including linear accelerators and other
particle accelerators.
(11) "Radiation therapy equipment" means medical
equipment which is used to provide radiation
therapy services.
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1836
(12) "Radiation therapy services" means those
services which involve the delivery of
controlled and monitored doses of radiation to
a defined volume of tumor bearing tissue
within a patient. Radiation may be delivered to
the tumor region by the use of radioactive
implants or by beams of ionizing radiation or it
may be delivered to the tumor region
systemically.
(13) "Radiation therapy service area" means a
single or multi-county area as used in the
development of the need determination in the
applicable State Medical Facilities Plan.
(14) "Simple Radiation treatment" means treatment
on a single site on the body, single treatment
field or parallel opposed fields with no more
than simple blocks and is equal to 1 ESTV.
(15) "Simulator" means a machine that reproduces
the geometric relationships of the MRT
equipment to the patient.
(16) "Special technique" means radiation therapy
treatments that may require increased time for
each patient visit including:
(a) total body irradiation (photons or
electrons) which equals 2.5 ESTVs;
(b) hemi-body irradiation which equals
2.0 ESTVs;
(c) intraoperative radiation therapy which
equals 10.0 ESTVs;
(d) particle neutron and proton radiation
therapy which equals 2.0 ESTVs;
(e) weekly radiation therapy
management, conformal,which equals
1.5 ESTVs;
(e) intensity modulated radiation
treatment (IMRT) which equals 2.0
ESTVs;
(f) limb salvage irradiation at lengthened
SSD which equals 1.0 ESTV;
(g) additional field check radiographs
which equals .50 ESTV;
(h) stereotactic radiosurgery treatment
management with linear accelerator
or gamma knife which equals 3.0.
ESTVs; and
(i) pediatric patient under anesthesia
which equals 1.2 1.5 ESTVs.
Authority G.S. 131E-177(1); 131E-183(b).
10A NCAC 14C .1902 INFORMATION REQUIRED OF
APPLICANT
(a) An applicant proposing to acquire radiation therapy
equipment shall use the Acute Care Facility/Medical Equipment
application form.
(b) An applicant proposing to acquire radiation therapy
equipment shall also provide the following additional
information:
(1) a list of all the radiation therapy equipment to
be acquired and documentation of the
capabilities and capacities of each item of
equipment;
(2) documentation of the purchase price and fair
market value of each piece of radiation therapy
equipment, each simulator, and any other
related equipment proposed to be acquired;
(3) the projected number of patient treatments by
county and by simple, intermediate and
complex treatments to be performed on each
piece of radiation therapy equipment for each
of the first eight calendar quarters three years
of operation following the completion of the
proposed project and documentation of all
assumptions by which utilization is projected;
(4) documentation that the proposed radiation
therapy equipment shall be operational at least
seven hours per day, five days a week;
(5) documentation that no more than one
simulator is available for every two linear
accelerators in the applicant's facility, except
that an applicant that has only one linear
accelerator may have one simulator;
(6) documentation that the services shall be
offered in a physical environment that
conforms to the requirements of federal, state,
and local regulatory bodies; and
(7) the projected number of patients that will be
treated for cure and the number of patients that
will be treated for palliation on each linear
accelerator on an annual basis. by county in
each of the first three years of operation
following completion of the proposed project.
Authority G.S. 131E-177(1); 131E-183.
SECTION .2100 – CRITERIA AND STANDARDS FOR
SURGICAL SERVICES AND OPERATING ROOMS
10A NCAC 14C .2101 DEFINITIONS
The following definitions shall apply to all rules in this Section:
(1) "Ambulatory surgical case" means an
individual who receives one or more
ambulatory surgical procedures in an operating
room during a single operative encounter.
(2) "Ambulatory surgical service area" means a
single or multi-county area as used in the
development of the ambulatory surgical
facility need determination in the applicable
State Medical Facilities Plan.
(3) "Ambulatory surgical services" means those
surgical services provided to patients as part of
an ambulatory surgical program within a
licensed ambulatory surgical facility or a
general acute care hospital licensed under G.S.
131E, Article 5, Part A.
(4)(1) "Ambulatory surgical facility" means a facility
as defined in G.S. 131E-176(1b).
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1837
(5)(2) "Operating room" means an inpatient
operating room, an outpatient or ambulatory
surgical operating room, a shared operating
room, or an endoscopy procedure room in a
licensed health service facility.
(6)(3) "Ambulatory surgical program" means a
program as defined in G.S. 131E-176(1c).
(7) "Ambulatory surgical procedure" means a
procedure performed in an operating room
which requires local, regional or general
anesthesia and a period of post-operative
observation of less than 24 hours.
(8)(4) "Existing operating rooms" means those
operating rooms in ambulatory surgical
facilities and hospitals which were reported in
the License Application for Ambulatory
Surgical Facilities and Programs and in Part III
of Hospital Licensure Renewal Application
Form submitted to the Licensure Section of the
Division of Facility Services and which were
licensed and certified prior to the beginning of
the review period.
(9)(5) "Approved operating rooms" means those
operating rooms that were approved for a
certificate of need by the Certificate of Need
Section prior to the date on which the
applicant's proposed project was submitted to
the Agency but that have not been licensed and
certified.
(10)(6) "Multispecialty ambulatory surgical program"
means a program as defined in G.S. 131E-
176(15a).
(11)(7) "Outpatient or ambulatory surgical operating
room" means an operating room used solely
for the performance of ambulatory surgical
procedures. procedures which require local,
regional or general anesthesia and a period of
post-operative observation of less than 24
hours.
(8) "Service area" means the Operating Room
Service Area as defined in the applicable State
Medical Facilities Plan.
(12)(9) "Shared operating room" means an operating
room that is used for the performance of both
ambulatory and inpatient surgical procedures.
(13)(10) "Specialty area" means an area of medical
practice in which there is an approved medical
specialty certificate issued by a member board
of the American Board of Medical Specialties
and includes, but is not limited to the
following: gynecology, otolaryngology,
plastic surgery, general surgery,
ophthalmology, urology, orthopedics, and oral
surgery.
(14)(11) "Specialty ambulatory surgical program"
means a program as defined in G.S. 131E-
176(24c).
(15) "Practical utilization" is 4.3 surgical cases per
day for an outpatient or ambulatory surgical
operating room, 3.5 surgical cases per day for
a shared operating room, 2.7 surgical cases per
day for an inpatient operating room, and 4.3
cases per day for an endoscopy procedure
room.
(12) "Surgical case" means an individual who
receives one or more surgical procedures in an
operating room during a single operative
encounter.
Authority G.S. 131E-177(1); 131E-183(b).
10A NCAC 14C .2103 PERFORMANCE STANDARDS
(a) In projecting utilization for existing, approved, proposed and
expanded surgical programs, a program utilization, the existing,
approved and proposed operating rooms shall be considered to
be open available for use five days per week and 52 weeks a
year.
(b) A proposal to establish a new ambulatory surgical facility, to
increase the number of operating rooms (excluding dedicated C-section
operating rooms), to convert a specialty ambulatory
surgical program to a multispecialty ambulatory surgical
program or to add a specialty to a specialty ambulatory surgical
program shall not be approved unless the applicant documents
that the average number of surgical cases per operating room to
be performed in the applicant's facility each facility owned by
the applicant in the proposed service area, is reasonably
projected to be at least 2.7 2.4 surgical cases per day for each
inpatient operating room, 4.3 4.8 surgical cases per day for each
outpatient or ambulatory surgical operating room, 4.3 7.2 cases
per day for each endoscopy procedure room, and 3.5 3.2 surgical
cases per day for each shared operating room during the fourth
quarter of the third year of operation following completion of the
project.
(c) A proposal to develop an additional operating room to be
used as a dedicated C-section operating room shall not be
approved unless the applicant documents that the average
number of surgical cases per operating room to be performed in
each facility owned by the applicant in the proposed service
area, is reasonably projected to be at least 2.4 surgical cases per
day for each inpatient operating room (excluding dedicated C-section
operating rooms), 4.8 surgical cases per day for each
outpatient or ambulatory surgical operating room and 3.2
surgical cases per day for each shared operating room during the
third year of operation following completion of the project.
(c)(d) An applicant proposing to convert a specialty ambulatory
surgical program to a multispecialty ambulatory surgical
program or to add a specialty to a specialty ambulatory surgical
program shall provide documentation to show that each existing
ambulatory surgery program in the ambulatory surgical service
area that performs ambulatory surgery in the same specialty area
as proposed in the application is currently operating at 4.3 4.8
surgical cases per day for each outpatient or ambulatory surgical
operating room, 4.3 7.2 cases per day for each endoscopy
procedure room, and 3.5 3.2 surgical cases per day for each
shared operating room.
(d)(e) An applicant proposing to convert a specialty ambulatory
surgical program to a multispecialty ambulatory surgical
program or to add a specialty to a specialty ambulatory surgical
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19:23 NORTH CAROLINA REGISTER June 1, 2005
1838
program shall provide documentation to show that each existing
and approved ambulatory surgery program in the ambulatory
surgical service area that performs ambulatory surgery in the
same specialty areas as proposed in the application is reasonably
projected to be operating at 4.3 4.8 surgical cases per day for
each outpatient or ambulatory surgical operating room, 4.3 7.2
cases per day for each endoscopy procedure room, and 3.5 3.2
surgical cases per day for each shared surgical operating room
prior to the completion of the proposed project. The applicant
shall document the assumptions and provide data supporting the
methodology used for the projections.
(f) The applicant shall document the assumptions and provide
data supporting the methodology used for each projection in this
Rule.
Authority G.S. 131E-177; 131E-183(b).
SECTION .2200 – CRITERIA AND STANDARDS FOR
END-STAGE RENAL DISEASE SERVICES
10A NCAC 14C .2202 INFORMATION REQUIRED OF
APPLICANT
(a) An applicant that proposes to increase dialysis stations in an
existing certified facility or relocate stations must provide the
following information:
(1) Utilization rates;
(2) Mortality rates;
(3) The number of patients that are home trained
and the number of patients on home dialysis;
(4) The number of transplants performed or
referred;
(5) The number of patients currently on the
transplant waiting list;
(6) Hospital admission rates, by admission
diagnosis, i.e., dialysis related versus
non-dialysis related;
(7) The number of patients with infectious
disease, i.e., hepatitis and AIDS, e.g., hepatitis,
and the number converted to infectious status
during last calendar year.
(b) An applicant that proposes to develop a new facility,
increase the number of dialysis stations in an existing facility, or
establish a new dialysis station, or the relocation of relocate
existing dialysis stations must shall provide the following
information requested on the End Stage Renal Disease (ESRD)
Treatment application form:
(1) A For new facilities, a letter of intent to sign a
written agreement or a signed written
agreement with an acute care hospital that
specifies the relationship with the dialysis
facility and describes the services that the
hospital will provide to patients of the dialysis
facility. The agreement must comply with 42
C.F.R., Section 405.2100.
(2) A For new facilities, a letter of intent to sign a
written agreement or a written agreement with
a transplantation center describing the
relationship with the dialysis facility and the
specific services that the transplantation center
will provide to patients of the dialysis facility.
The agreements must include the following:
(A) timeframe for initial assessment and
evaluation of patients for
transplantation,
(B) composition of the
assessment/evaluation team at the
transplant center,
(C) method for periodic re-evaluation,
(D) criteria by which a patient will be
evaluated and periodically
re-evaluated for transplantation, and
(E) signatures of the duly authorized
persons representing the facilities and
the agency providing the services.
(3) Documentation that the water supply will
comply with 42 C.F.R., Section 405.2100.
(4)(3) Documentation of standing service from a
power company and back-up capabilities.
(5)(4) The For new facilities, the location of the site
on which the services are to be operated. If
such site is neither owned by nor under option
to the applicant, the applicant must provide a
written commitment to pursue acquiring the
site if and when the approval is granted, must
specify a secondary site on which the services
could be operated should acquisition efforts
relative to the primary site ultimately fail, and
must demonstrate that the primary and
secondary sites are available for acquisition.
(6)(5) Documentation that the services will be
provided in conformity with applicable laws
and regulations pertaining to staffing, fire
safety equipment, physical environment, water
supply, and other relevant health and safety
requirements.
(7)(6) The projected patient origin for the services.
All assumptions, including the methodology
by which patient origin is projected, must be
stated.
(8)(7) For new facilities, documentation that at least
80 percent of the anticipated patient population
resides within 30 miles of the proposed
facility.
(8) A commitment that the applicant shall admit
and provide dialysis services to patients who
have no insurance or other source of payment,
but for whom payment for dialysis services
will be made by another healthcare provider in
an amount equal to the Medicare
reimbursement rate for such services.
Authority G.S. 131E-177(1); 131E-183(b).
10A NCAC 14C .2203 PERFORMANCE STANDARDS
(a) An applicant proposing to establish a new End Stage Renal
Disease facility shall document the need for at least 10 stations
based on utilization of 3.2 patients per station per week as of the
end of the first operating year of the facility.
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1839
(b) An applicant proposing to increase the number of dialysis
stations in an existing End Stage Renal Disease facility shall
document the need for the additional stations based on utilization
of 3.2 patients per station per week as of the end of the first
operating year of the additional stations. stations with the
exception that the performance standard shall be waived for a
need in the State Medical Facilities Plan that is based on an
adjusted need determination.
(c) An applicant shall provide all assumptions, including the
specific methodology by which patient utilization is projected.
Authority G.S. 131E-177(1); 131E-183(b).
SECTION .2700 - CRITERIA AND STANDARDS FOR
MAGNETIC RESONANCE IMAGING SCANNER
10A NCAC 14C .2701 DEFINITIONS
The following definitions shall apply to all rules in this Section:
(1) "Approved MRI scanner" means an MRI
scanner which was not operational prior to the
beginning of the review period but which had
been issued a certificate of need.
(2) " Capacity of fixed MRI scanner" means 100%
of the procedure volume that the MRI scanner
is capable of completing in a year, given
perfect scheduling, no machine or room
downtime, no cancellations, no patient
transportation problems, no staffing or
physician delays and no MRI procedures
outside the norm. Annual capacity of a fixed
MRI scanner is 6,864 weighted MRI
procedures, which assumes two weighted MRI
procedures are performed per hour and the
scanner is operated 66 hours per week, 52
weeks per year.
(3) "Capacity of mobile MRI scanner" means
100% of the procedure volume that the MRI
scanner is capable of completing in a year,
given perfect scheduling, no machine or room
downtime, no cancellations, no patient
transportation problems, no staffing or
physician delays and no MRI procedures
outside the norm. Annual capacity of a mobile
MRI scanner is 4,160 weighted MRI
procedures, which assumes two weighted MRI
procedures are performed per hour and the
scanner is operated 40 hours per week, 52
weeks per year.
(2)(4) "Existing MRI scanner" means an MRI
scanner in operation prior to the beginning of
the review period.
(5) "Fixed MRI scanner" means an MRI scanner
that is not a mobile MRI scanner.
(3)(6) "Magnetic Resonance Imaging" (MRI) means
a non-invasive diagnostic modality in which
electronic equipment is used to create
tomographic images of body structure. The
MRI scanner exposes the target area to
nonionizing magnetic energy and radio
frequency fields, focusing on the nuclei of
atoms such as hydrogen in the body tissue.
Response of selected nuclei to this stimulus is
translated into images for evaluation by the
physician.
(4)(7) "Magnetic resonance imaging scanner" (MRI
Scanner) is defined in G.S. 131E-
176(14e),G.S. 131E-176(14e).and includes
dedicated fixed breast MRI scanners.
(8) "Mobile MRI region" means either the eastern
part of the State which includes the counties in
Health Service Areas IV, V and VI, or the
western part of the State which includes the
counties in Health Service Areas I, II, and III.
The counties in each Health Service Area are
identified in Appendix A of the State Medical
Facilities Plan.
(5)(9) "Mobile MRI scanner" means an MRI scanner
and transporting equipment which is moved at
least weekly to provide services at two or more
host facilities.
(6)(10) "MRI procedure" means a single discrete MRI
study of one patient.
(7)(11) "MRI service area" means the Magnetic
Resonance Imaging Planning Areas, as defined
in the applicable State Medical Facilities Plan,
except for proposed new mobile MRI
scanners. scanners for which the service area is
a mobile MRI region.
(8)(12) "MRI study" means one or more scans relative
to a single diagnosis or symptom.
(13) "Pediatric MRI patient" means a patient
requiring an MRI scan who is under the age of
12 years or who is a special needs patient and
is under the age of 21 years.
(14) "Related entity" means the parent company of
the applicant, a subsidiary company of the
applicant (i.e., the applicant owns 50% or
more of another company), a joint venture in
which the applicant is a member, or a
company that shares common ownership with
the applicant (i.e., the applicant and another
company are owned by some of the same
persons).
(15) "Special Needs patient" means a patient who
has cerebral palsy, encephalomyelopathy,
central nervous system injuries, genetic and
metabolic disorders, autism, and mental
retardation.
(16) "Temporary MRI scanner" means a MRI
scanner that the Certificate of Need Section
has approved to be temporarily located in
North Carolina at a facility that holds a
certificate of need for a new fixed MRI
scanner, but which is not operational because
the project is not yet complete.
(17) "Weighted MRI procedures" means MRI
procedures which are adjusted to account for
the length of time to complete the procedure,
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19:23 NORTH CAROLINA REGISTER June 1, 2005
1840
based on the following weights: one outpatient
MRI procedure without contrast or sedation is
valued at 1.0 weighted MRI procedure, one
outpatient MRI procedure with contrast or
sedation is valued at 1.4 weighted MRI
procedures, one inpatient MRI procedure
without contrast or sedation is valued at 1.4
weighted MRI procedures; and one inpatient
MRI procedure with contrast or sedation is
valued at 1.8 weighted MRI procedures.
Authority G.S. 131E-177(1); 131E-183(b).
10A NCAC 14C .2702 INFORMATION REQUIRED OF
APPLICANT
(a) An applicant proposing to acquire an MRI scanner,
including a mobile MRI scanner, shall use the Acute Care
Facility/Medical Equipment application form.
(b) Except for proposals to acquire mobile MRI scanners that
serve two or more host facilities, both the applicant and the
person billing the patients for the MRI service shall be named as
co-applicants in the application form.
(c) An applicant proposing to acquire a magnetic resonance
imaging scanner, including a mobile MRI scanner, shall provide
the following information:
(1) documentation that the proposed fixed MRI
scanner shall be available and staffed for use at
least 66 hours per week, with the exception of
a mobile MRI scanner; week;
(2) documentation that the proposed mobile MRI
scanner shall be available and staffed for use at
least 40 hours per week;
(2) projections of the annual number of
procedures to be performed for each of the
first three years of operation after completion
of the project;
(3) the average charge to the patient, regardless of
who bills the patient, for each of the 20 most
frequent MRI procedures to be performed for
each of the first three years of operation after
completion of the project and a description of
items included in the charge; if the
professional fee is included in the charge,
provide the dollar amount for the professional
fee;
(4) if the proposed MRI service will be provided
pursuant to a service agreement, the dollar
amount of the service contract fee billed by the
applicant to the contracting party for each of
the first three years of operation; and
(5) letters from physicians indicating their intent
to refer patients to the proposed magnetic
resonance imaging scanner. scanner and their
estimate of the number of patients proposed to
be referred per year;
(6) for each location at which the service will be
provided, projections of the annual number of
weighted MRI procedures to be performed for
each of the four types of weighted MRI
procedures, as identified in the SMFP, for each
of the first three years of operation after
completion of the project;
(7) a detailed description of the methodology used
to project the number of weighted MRI
procedures to be performed;
(8) documentation to support each assumption
used in projecting the number of procedures to
be performed;
(9) for each existing fixed or mobile MRI scanner
owned by the applicant or a related entity and
operated in North Carolina in the month the
application is submitted, the vendor, tesla
strength, serial number or vehicle
identification number, CON project
identification number, physical location for
fixed MRI scanners, and host sites for mobile
MRI scanners;
(10) for each approved fixed or mobile MRI
scanner to be owned by the applicant or a
related entity and approved to be operated in
North Carolina, the proposed vendor, proposed
tesla strength, CON project identification
number, physical location for fixed MRI
scanners, and host sites for mobile MRI
scanners;
(11) if proposing to acquire a mobile MRI scanner,
an explanation of the basis for selection of the
proposed host sites if the host sites are not
located in MRI service areas that lack a fixed
MRI scanner.
(d) An applicant proposing to acquire a mobile MRI scanner
shall provide copies of letters of intent from, and proposed
contracts with, all of the proposed host facilities of the new MRI
scanner.
(e) An applicant proposing to acquire a dedicated fixed breast
MRI scanner shall:
(1) provide a copy of a contract or working
agreement with a radiologist or practice group
that has experience interpreting images and is
trained to interpret images produced by an
MRI scanner configured exclusively for
mammographic studies;
(2) document that the applicant performed
mammograms without interruption in the
provision of the service during the last year;
and
(3) document that the applicant's existing
mammography equipment is in compliance
with the U.S. Food and Drug Administration
Mammography Quality Standards Act.
(f) An applicant proposing to acquire a dedicated fixed pediatric
MRI scanner shall:
(1) provide a copy of a contract or working
agreement with two pediatric radiologists
qualified as described in 10A NCAC 14C
.2705(f)(1);
(2) provide a copy of the facility's emergency plan
for pediatric and special needs patients that
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1841
outline all emergency procedures including
acute care transfers and a copy of a contract
with an ambulance service for transportation
during any emergencies;
(3) commit that the proposed MRI scanner shall
be used exclusively to perform procedures on
pediatric MRI patients;
(4) provide a description of the scope of the
research studies that shall be conducted to
develop protocols related to MRI scanning of
pediatric MRI patients; which includes special
needs patients: and
(5) commit to prepare an annual report, to be
submitted to the Medical Facilities Planning
Section and the Certificate of Need Section,
which shall include the protocols for scanning
pediatric MRI patients and the annual volume
of weighted MRI procedures performed, by
type.
Authority G.S. 131E-177(1); 131E-183(b).
10A NCAC 14C .2703 PERFORMANCE STANDARDS
(a) An applicant proposing to acquire a mobile magnetic
resonance imaging (MRI) scanner shall:
(1) if an applicant operates an existing mobile
MRI scanner in the Health Service Area(s),
demonstrate that at least 2900 MRI procedures
were performed in the last year on each of its
existing mobile MRI scanners operating in the
Health Service Area(s), (e.g., HSA I), in which
the proposed mobile MRI scanner will be
located demonstrate that each existing mobile
MRI scanner which the applicant or a related
entity owns and operates in the mobile MRI
region in which the proposed equipment will
be located, except temporary MRI scanners,
performed 3,328 weighted MRI procedures in
the most recent 12 month period for which the
applicant has data. [Note: This is not the
average number of weighted MRI procedures
performed on all of the applicant's mobile MRI
scanners.];
(2) demonstrate annual utilization in the third year
of operation is reasonably projected to be at
least 2900 3328 weighted MRI procedures on
each of its the existing, approved and proposed
mobile MRI scanners owned by the applicant
or a related entity to be operated in the Health
Service Area(s), (e.g., HSA I), mobile MRI
region in which the proposed equipment will
be located. [Note: This is not the average
number of weighted MRI procedures
performed on all of the applicant's mobile MRI
scanners.];
(3) document the assumptions and provide data
supporting the methodology used for each
projection required in this Rule.
(b) An applicant proposing to acquire a fixed magnetic
resonance imaging (MRI) scanner for which the need
determination in the State Medical Facilities Plan was based on
the utilization of fixed MRI scanners, scanner, except for fixed
MRI scanners described in Paragraphs (c) and (d) of this Rule,
shall:
(1) if an applicant operates an existing MRI
scanner in the proposed MRI service area,
demonstrate that its existing MRI scanners,
except mobile MRI scanners, operating in the
proposed MRI service area in which the
proposed MRI scanner will be located
performed an average of at least 2900 MRI
procedures per scanner in the last year;
demonstrate that the existing fixed MRI
scanners which the applicant or a related entity
owns and locates in the proposed MRI service
area performed an average of 3,328 weighted
MRI procedures in the most recent 12 month
period for which the applicant has data.
(2) demonstrate that each existing mobile MRI
scanner which the applicant or a related entity
owns and operates in the proposed mobile
MRI region, except temporary MRI scanners,
performed 3,328 weighted MRI procedures in
the most recent 12 month period for which the
applicant has data. [Note: This is not the
average number of weighted MRI procedures
performed on all of the applicant's mobile MRI
scanners.];
(2)(3) demonstrate annual utilization in the third year
of operation is reasonably projected to be an
average of 2900 procedures per scanner for all
existing, approved and proposed MRI scanners
or mobile MRI scanners to be operated by the
applicant in the MRI service area(s) in which
the proposed equipment will be located; and;
demonstrate that the average annual utilization
of the existing, approved and proposed fixed
MRI scanners which the applicant or a related
entity owns and locates in the proposed MRI
service area are reasonably expected to
perform the following number of weighted
MRI procedures, whichever is applicable, in
the third year of operation following
completion of the proposed project:
(A) 1,716 weighted MRI procedures in
MRI service areas in which the SMFP
shows no fixed MRI scanners are
located,
(B) 3,775 weighted MRI procedures in
MRI service areas in which the SMFP
shows one fixed MRI scanner is
located,
(C) 4,118 weighted MRI procedures in
MRI service areas in which the SMFP
shows two fixed MRI scanners are
located,
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1842
(D) 4,462 weighted MRI procedures in
MRI service areas in which the SMFP
shows three fixed MRI scanners are
located, or
(E) 4,805 weighted MRI procedures in
MRI service areas in which the SMFP
shows four or more fixed MRI
scanners are located.
(4) demonstrate that annual utilization of each
existing, approved and proposed mobile MRI
scanner which the applicant or a related entity
owns and locates in the proposed MRI service
area is reasonably expected to perform 3,328
weighted MRI procedures in the third year of
operation following completion of the
proposed project. [Note: This is not the
average number of weighted MRI procedures
to be performed on all of the applicant's
mobile MRI scanners.];
(4)(5) document the assumptions and provide data
supporting the methodology used for each
projection required in this Rule.
(c) An applicant proposing to acquire a magnetic resonance
imaging (MRI) scanner for which the need determination in the
State Medical Facilities Plan was based on utilization of mobile
MRI scanners, shall:
(1) if the applicant does not own or lease an MRI
scanner or have an approved MRI scanner,
demonstrate annual utilization in the third year
of operation is reasonably projected to be at
least 2080 MRI procedures per year for the
proposed MRI scanner;
(2) if the applicant already owns or leases an MRI
scanner or has an approved MRI scanner,
demonstrate annual utilization is reasonably
projected to be an average of 2900 MRI
procedures per scanner for all existing,
approved and proposed MRI scanners or
mobile MRI scanners to be operated by the
applicant in the MRI service area(s) in which
the proposed equipment will be located; and
(3) document the assumptions and provide data
supporting the methodology used for each
projection required in this Rule.
(d)(c) An applicant proposing to acquire a fixed magnetic
resonance imaging (MRI) scanner for which the need
determination in the State Medical Facilities Plan was based on
the absence of an existing or approved fixed MRI scanner in the
MRI service area an approved petition for an adjustment to the
need determination shall:
(1) demonstrate annual utilization of the proposed
MRI scanner in the third year of operation is
reasonably projected to be at least 2080 1,716
weighted MRI procedures per year; and
(2) document the assumptions and provide data
supporting the methodology used for each
projection required in this Rule.
(e)(d) An applicant proposing to acquire a dedicated fixed
pediatric MRI scanner shall:
(1) demonstrate annual utilization of the proposed
MRI scanner in the third year of operation is
reasonably projected to be at least 2746
weighted MRI procedures (i.e., 80 percent of
one procedure per hour, 66 hours per week, 52
weeks per year); and
(2) document the assumptions and provide data
supporting the methodology used for each
projection required in this Rule.
Authority G.S. 131E-177(1); 131E-183(b).
10A NCAC 14C .2704 SUPPORT SERVICES
(a) An applicant proposing to acquire a magnetic resonance
imaging scanner, including a mobile MRI scanner, shall make
available through written affiliation or referral agreements the
following services:
(1) anesthesiology,
(2) radiology,
(3) oncology,
(4) neurology,
(5) internal medicine,
(6) orthopedics,
(7) neurosurgery,
(8) pathology, and
(9) surgery.
(b)(a) An applicant proposing to acquire a mobile MRI scanner
shall provide referral agreements between each host site and at
least one other provider of MRI services in the proposed MRI
service area to document the availability of MRI services if
patients require them when the mobile unit is not in service at
that host site.
(b) An applicant proposing to acquire a dedicated fixed
pediatric MRI scanner shall provide a written policy regarding
pediatric sedation which outlines the criteria for sedating a
pediatric patient, including the special needs patients, and
identifies the staff that will administer and supervise the sedation
process.
(c) An applicant proposing to acquire a dedicated fixed pediatric
MRI scanner shall provide evidence of the availability of a
pediatric code cart at the facility where the proposed pediatric
MRI scanner will be located and a plan for emergency situations
as described in 10A NCAC 14C .2702(f)(2).
(d) An applicant proposing to acquire a fixed or mobile MRI
scanner shall obtain accreditation from the Joint Commission for
the Accreditation of Healthcare Organizations, the American
College of Radiology or a comparable accreditation authority, as
determined by the Certificate of Need Section, for magnetic
resonance imaging within two years following operation of the
proposed MRI scanner.
Authority G.S. 131E-177(1); 131E-183(b).
10A NCAC 14C .2705 STAFFING AND STAFF
TRAINING
(a) An applicant proposing to acquire an MRI scanner shall
demonstrate that one diagnostic radiologist certified by the
American Board of Radiologists shall be available to provide the
proposed services who has had:
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1843
(1) training in magnetic resonance imaging as an
integral part of his or her residency training
program; or
(2) six months of supervised MRI experience
under the direction of a certified diagnostic
radiologist; or
(3) at least six months of fellowship training, or its
equivalent, in MRI; or
(4) a combination of MRI experience and
fellowship training equivalent to Subparagraph
(a)(1), (2) or (3) of this Rule.
(b) An applicant proposing to acquire a dedicated fixed breast
MRI scanner shall provide documentation that the radiologist is
trained and has experience in interpreting images produced by an
MRI scanner configured exclusively to perform mammographic
studies.
(c) The An applicant proposing to acquire a MRI scanner shall
provide evidence of the availability of two full-time MRI
technologist-radiographers and that one of these technologists
shall be present during the hours of operation of the MRI
scanner.
(d) An applicant proposing to acquire an MRI scanner shall
demonstrate that the following staff training is provided:
(1) American Red Cross or American Heart
Association certification in cardiopulmonary
resuscitation (CPR) and basic cardiac life
support; and
(2) the availability of an organized program of
staff education and training which is integral
to the services program and ensures
improvement in technique and the proper
training of new personnel.
(e) An applicant proposing to acquire a mobile MRI scanner
shall document that the requirements in Paragraphs (a) and (c) of
this Rule shall be met at each host facility.
(f) An applicant proposing to acquire a dedicated fixed pediatric
MRI scanner shall:
(1) provide documentation of the availability of at
least two radiologists, certified by the
American Board of Radiology, with a pediatric
fellowship or two years of specialized training
in pediatrics;
(2) provide evidence that the applicant will have
at least one licensed physician on-site during
the hours of operation of the proposed MRI
scanner;
(3) provide documentation that the applicant will
employ at least two licensed registered nurses
and that one of these nurses shall be present
during the hours of operation of the proposed
MRI scanner;
(4) provide a description of a research group for
the project including a radiologist, neurologist,
pediatric sedation specialist and research
coordinator;
(5) provide documentation of the availability of
the research group to conduct research studies
on the proposed MRI scanner; and
(6) provide letters from the proposed members of
the research group indicating their
qualifications, experience and willingness to
participate on the research team.
(g) An applicant proposing to perform cardiac MRI procedures
shall provide documentation of the availability of a radiologist,
certified by the American Board of Radiology, with training and
experience in interpreting images produced by an MRI scanner
configured to perform cardiac MRI studies.
Authority G.S. 131E-177(1); 131E-183(b).
SECTION .3700 - CRITERIA AND STANDARDS FOR
POSITRON EMISSION TOMOGRAPHY SCANNER
10A NCAC 14C .3703 PERFORMANCE STANDARDS
(a) An applicant proposing to acquire a dedicated PET scanner,
including a mobile dedicated PET scanner, shall demonstrate
that:
(1) the proposed dedicated PET scanner, including
a proposed mobile dedicated PET scanner,
shall be utilized at an annual rate of at least
1,220 3,200 PET procedures by the end of the
third year following completion of the project;
(2) if an applicant operates an existing dedicated
PET scanner, its existing dedicated PET
scanners, excluding those used exclusively for
research, performed an average of 1,200 at
least 3,200 PET procedures per PET scanner in
the last year; and
(3) its existing and approved dedicated PET
scanners shall perform an average of at least
1,220 3,200 PET procedures per PET scanner
during the third year following completion of
the project.
(b) The applicant shall describe the assumptions and provide
data to support and document the assumptions and methodology
used for each projection required in this Rule.
Authority G.S. 131E-177(1); 131E-183(b).
SECTION .3800 - CRITERIA AND STANDARDS
FOR ACUTE CARE BEDS
10A NCAC 14C .3802 INFORMATION REQUIRED OF
APPLICANT
(a) An applicant that proposes to develop new acute care beds
shall complete the Acute Care Facility/Medical Equipment
application form.
(b) An applicant proposing to develop new acute care beds shall
submit the following information:
(1) the number of acute care beds proposed to be
licensed and operated following completion of
the proposed project;
(2) documentation that the proposed services shall
be provided in conformance with all applicable
facility, programmatic, and service specific
licensure, certification, and JCAHO
accreditation standards;
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1844
(3) documentation that the proposed services shall
be offered in a physical environment that
conforms to the requirements of federal, state,
and local regulatory bodies;
(4) if adding new acute care beds to an existing
facility, documentation of the number of
inpatient days of care provided in the last
operating year in the existing licensed acute
care beds by medical diagnostic category, as
classified by the Centers for Medicare and
Medicaid Services according to the list set
forth in the applicable State Medical Facilities
Plan;
(5) the projected number of inpatient days of care
to be provided in the total number of licensed
acute care beds in the facility, by county of
residence, for each of the first three years
following completion of the proposed project,
including all assumptions, data and
methodologies;
(6) documentation that the applicant shall be able
to communicate with emergency transportation
agencies 24 hours per day, 7 days per week;
(7) documentation that services in the emergency
care department shall be provided 24 hours per
day, 7 days per week, including a description
of the scope of services to be provided during
each shift and the physician and professional
staffing that will be responsible for provision
of those services;
(8) copy of written administrative policies that
prohibit the exclusion of services to any
patient on the basis of age, race, sex, creed,
religion, disability or the patient’s ability to
pay;
(9) a written commitment to participate in and
comply with conditions of participation in the
Medicare and Medicaid programs;
(10) documentation of the health care services
provided by the applicant, and any facility in
North Carolina owned or operated by the
applicant’s parent organization, in each of the
last two operating years to Medicare patients,
Medicaid patients, and patients who are not
able to pay for their care;
(11) documentation of strategies to be used and
activities undertaken by the applicant to attract
physicians and medical staff who will provide
care to patients without regard to their ability
to pay; and
(12) correspondence from physicians and other
referral sources that documents their
willingness to offered in the new acute care
beds; and
(13)(12) documentation that the proposed new acute
care beds shall be operated in a hospital that
provides inpatient medical services to both
surgical and non-surgical patients.
(c) An applicant proposing to develop new acute care beds in a
new licensed hospital or on a new campus of an existing hospital
shall also submit the following information:
(1) the projected number of inpatient days of care
to be provided in the licensed acute care beds
in the new hospital or on the new campus, by
major diagnostic category as recognized by the
Centers for Medicare and Medicaid Services
(CMS) according to the list set forth in the
applicable State Medical Facilities Plan;
(2) documentation that medical and surgical
services shall be provided in the proposed
acute care beds on a daily basis within at least
five of the major diagnostic categories as
recognized by the Centers for Medicare and
Medicaid Services (CMS) according to the list
set forth in the applicable State Medical
Facilities Plan;
(3) copies of written policies and procedures for
the provision of care within the new acute care
hospital or on the new campus, including but
not limited to the following:
(A) the admission and discharge of
patients, including discharge
planning,
(B) transfer of patients to another
hospital,
(C) infection control, and
(D) safety procedures;
(4) documentation that the applicant owns or
otherwise has control of the site on which the
proposed acute care beds will be located; and
(5) documentation that the proposed site is
suitable for development of the facility with
regard to water, sewage disposal, site
development and zoning requirements; and
provide the required procedures for obtaining
zoning changes and a special use permit if site
is currently not properly zoned. zoned; and
(6) correspondence from physicians and other
referral sources that documents their
willingness to refer or admit patients to the
proposed new hospital or new campus.
Authority G.S. 131E-177(1); 131E-183.
* * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Commission for Health Services intends to amend the rule
cited as 10A NCAC 43D .0706.
Proposed Effective Date: October 1, 2005
Public Hearing:
Date: July 7, 2005
Time: 10:00 a.m. – 12:00 p.m.
Location: Room 116, Royster Building, Dorthea Dix Campus,
1020 Richardson Drive, Raleigh, NC
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1845
Reason for Proposed Action: The proposed rule changes are
required to comply with the Child and Nutrition and WIC
Reauthorization Act of 2004, P.L. 108-265 as well as some state
policy changes dealing with cost containment in the retail food
delivery system of the WIC Program. In addition, the changes
include the establishment of three new sanctions for vendor
violations described in the new rule.
Procedure by which a person can object to the agency on a
proposed rule: Objections may be submitted in writing to Chris
G. Hoke, JD, the Rule-Making Coordinator, during the public
comment period. Additionally, objections may be made verbally
or in writing at the public hearing for this rule.
Written comments may be submitted to: Chris Hoke, 1915
Mail Service Center, Raleigh, NC 27699-1915, email
chris.hoke@ncmail.net.
Comment period ends: August 1, 2005
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
State
Local
Substantive (>$3,000,000)
None
10A NCAC 43D .0706 AUTHORIZED WIC VENDORS
(a) Vendor applicants and authorized vendors shall be placed
into peer groups as follows:
(1) When annual WIC supplemental food sales are
not yet available, vendor applicants and
authorized vendors, excluding chain stores,
stores under a WIC corporate agreement,
military commissaries, and free-standing
pharmacies, shall be placed into peer groups
based on the number of cash registers in the
store until annual WIC supplemental food
sales become available. The following are the
peer groups based on the number of cash
registers in the store:
Peer Group I - - zero to two cash registers;
Peer Group II - - three to five cash
registers; and
Peer Group III - - six or more cash
registers;registers.
WIC sales figures of new vendors will be
reviewed six months from authorization. A
vendor whose first six months of WIC sales
exceed twenty five thousand dollars ($25,000)
will be placed in the peer group designation in
accordance with the dollar thresholds of
Subparagraph(a)(2).
(2) Authorized vendors for which annual WIC
supplemental food sales is available, excluding
chain stores, stores under a WIC corporate
agreement, military commissaries, and free-standing
pharmacies, shall be placed into peer
groups as follows, except as provided in
Subparagraph (a)(7)(8) of this Rule.
Peer Group I - - two thousand dollars
($2,000) to twenty five thousand
dollars ($25,000) annually in WIC
supplemental food sales at the store;
Peer Group II - - greater than twenty
five thousand dollars ($25,000) but
not exceeding seventy five thousand
dollars ($75,000) annually in WIC
supplemental food sales at the store;
Peer Group III - - greater than seventy
five thousand dollars ($75,000) but
not exceeding three hundred thousand
dollars ($300,000) annually in WIC
supplemental food sales at the store;
and
Peer Group IV - - greater than three
hundred thousand dollars ($300,000)
annually in WIC supplemental food
sales at the store;
(3) Chain stores, stores under a WIC corporate
agreement (20 or more authorized vendors
under one agreement), military commissaries,
and free-standing pharmacies, including free-standing
pharmacy chain stores and free-standing
pharmacies participating under a
WIC corporate agreement, shall be placed into
peer groups as follows:
Peer Group IV - - chain stores, stores
under a WIC corporate agreement (20
or more authorized vendors under one
agreement) and military
commissaries; and
Peer Group V - - free-standing
pharmacies, including free-standing
pharmacy chain stores and free-standing
pharmacies participating
under a WIC corporate agreement;
(4) Annual WIC supplemental food sales is the
dollar amount in sales of WIC supplemental
foods at the store within a 12-month period.
PROPOSED RULES
19:23 NORTH CAROLINA REGISTER June 1, 2005
1846
(5) If a vendor applicant has at least 30%
ownership in the applying store and at least
30% ownership in a store(s) already
authorized, the applying store shall be placed
in the peer group of the highest designation of
the already authorized stores(s). Upon
contract reauthorization, all stores held under
common ownership shall be placed in the
highest peer group among those held
commonly. Common ownership is ownership
of 30% or more in two or more stores.
(5)(6) In determining a vendor's peer group
designation based on annual WIC
supplemental food sales under Subparagraph
(a)(2) of this Rule, the state agency shall look
at the most recent 12-month period for which
sales data is available. If the most recent
available 12-month period of WIC sales data
ends more than one year prior to the time of
designation, the peer group designation shall
be based on the number of cash registers in the
store in accordance with Subparagraph (a)(1)
of this Rule.
(6)(7) The state agency may reassess an authorized
vendor's peer group designation at any time
during the vendor's agreement period and
place the vendor in a different peer group if
upon reassessment the state agency determines
that the vendor is no longer in the appropriate
peer group.
(7)(8) A vendor applicant previously authorized in a
peer group under Subparagraph (a)(2) of this
Rule that is being reauthorized following the
nonrenewal or termination of its Agreement or
disqualification from the WIC Program shall
be placed into the same peer group the vendor
applicant was previously in under
Subparagraph (a)(2) of this Rule, provided that
no more than one year has passed since the
nonrenewal, termination or disqualification.
If more than one year has passed, the vendor
applicant shall be placed into a peer group in
accordance with Subparagraph (a)(1) of this
Rule.
(b) To become authorized as a WIC vendor, a vendor applicant
shall comply with the following vendor selection criteria:
(1) Accurately complete a WIC Vendor
Application, a WIC Price List, and a WIC
Vendor Agreement. A vendor applicant must
submit its current highest shelf price for each
WIC supplemental food listed on the WIC
Price List;
(2) At the time of application and throughout the
term of authorization, submit all completed
forms to the local WIC program, except that a
corporate entity operating under a WIC
corporate agreement shall submit one
completed WIC corporate agreement and the
WIC Price Lists to the state agency and a
separate WIC Vendor Application for each
store to the local WIC agency. A corporate
entity operating under a WIC corporate
agreement may submit a single WIC Price List
for those stores that have the same prices for
WIC supplemental foods in each store, rather
than submitting a separate WIC Price List for
each store;
(3) Authorized vendors shall agree to purchase all
infant formula, exempt infant formula, and
WIC-eligible medical food directly from:
(A) Infant formula manufacturers
registered with the Food and Drug
Administration;
(B) Food and drug wholesalers registered
with the North Carolina Secretary of
State and inspected or licensed by the
North Carolina Department of
Agriculture;
(C) Retail food stores that purchase
directly from infant formula
manufacturers or an approved
wholesaler in