This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 23 ● ISSUE 16 ● Pages 1555 - 1729
February 16, 2009
I. EXECUTIVE ORDERS
Executive Order No. 1 ........................................................................................ 1555 – 1556
Executive Order No. 2 ........................................................................................ 1557 – 1558
Executive Order No. 3 ........................................................................................ 1559 – 1561
Executive Order No. 4 ........................................................................................ 1562 – 1564
Executive Order No. 5 ........................................................................................ 1565 – 1567
II. IN ADDITION
Building Code Council – Notice of Rulemaking and Public Hearing ................ 1568
III. PROPOSED RULES
Environment and Natural Resources, Department of
Coastal Resources Commission ...................................................................... 1570 – 1575
Justice, Department of
Alarm Systems Licensing Board..................................................................... 1569 – 1570
Office of State Personnel
State Personnel Commission........................................................................... 1575
IV. TEMPORARY RULES
Health and Human Services, Department of
Health Service Regulation, Division of........................................................... 1576 – 1583
V. RULES REVIEW COMMISSION ................................................................. 1584 – 1590
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 1591 – 1599
Text of ALJ Decisions
07 DHR 2043 & 2045 ..................................................................................... 1600 – 1653
07 DHR 2275 .................................................................................................. 1654 – 1669
08 DHR 0818 .................................................................................................. 1670 – 1694
05 DST 0586................................................................................................... 1695 – 1700
05 EHR 1787...................................................................................................1701 – 1710
08 INS 0819 .................................................................................................... 1711 – 1721
08 OSP 0246 ................................................................................................... 1722 – 1729
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071
Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075
Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073
Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083
Angel Chen, Editorial Assistant angel.chen@oah.nc.gov (919) 431-3077
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081
Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
contact: William Crumbley, Economic Analyst william.crumbley@ncmail.net (919) 807-4740
Governor’s Review
Eddie Speas eddie.speas@nc.gov
Legal Counsel to the Governor (919) 733-5811
116 West Jones Street
Raleigh, North Carolina 27603
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney karenc@ncleg.net
Jeff Hudson, Staff Attorney jeffreyh@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn jim.blackburn@ncacc.org
Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Anita Watkins awatkins@nclm.org
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2009 – December 2009
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
31st legislative day of the
session beginning:
270th day from publication
in the Register
23:13 01/02/09 12/08/08 01/17/09 03/03/09 03/20/09 05/01/09 05/2010 09/29/09
23:14 01/15/09 12/19/08 01/30/09 03/16/09 03/20/09 05/01/09 05/2010 10/12/09
23:15 02/02/09 01/09/09 02/17/09 04/03/09 04/20/09 06/01/09 05/2010 10/30/09
23:16 02/16/09 01/26/09 03/03/09 04/17/09 04/20/09 06/01/09 05/2010 11/13/09
23:17 03/02/09 02/09/09 03/17/09 05/01/09 05/20/09 07/01/09 05/2010 11/27/09
23:18 03/16/09 02/23/09 03/31/09 05/15/09 05/20/09 07/01/09 05/2010 12/11/09
23:19 04/01/09 03/11/09 04/16/09 06/01/09 06/22/09 08/01/09 05/2010 12/27/09
23:20 04/15/09 03/24/09 04/30/09 06/15/09 06/22/09 08/01/09 05/2010 01/10/10
23:21 05/01/09 04/09/09 05/16/09 06/30/09 07/20/09 09/01/09 05/2010 01/26/10
23:22 05/15/09 04/24/09 05/30/09 07/14/09 07/20/09 09/01/09 05/2010 02/09/10
23:23 06/01/09 05/08/09 06/16/09 07/31/09 08/20/09 10/01/09 05/2010 02/26/10
23:24 06/15/09 05/22/09 06/30/09 08/14/09 08/20/09 10/01/09 05/2010 03/12/10
24:01 07/01/09 06/10/09 07/16/09 08/31/09 09/21/09 11/01/09 05/2010 03/28/10
24:02 07/15/09 06/23/09 07/30/09 09/14/09 09/21/09 11/01/09 05/2010 04/11/10
24:03 08/03/09 07/13/09 08/18/09 10/02/09 10/20/09 12/01/09 05/2010 04/30/10
24:04 08/17/09 07/27/09 09/01/09 10/16/09 10/20/09 12/01/09 05/2010 05/14/10
24:05 09/01/09 08/11/09 09/16/09 11/02/09 11/20/09 01/01/10 05/2010 05/29/10
24:06 09/15/09 08/24/09 09/30/09 11/16/09 11/20/09 01/01/10 05/2010 06/12/10
24:07 10/01/09 09/10/09 10/16/09 11/30/09 12/21/09 02/01/10 05/2010 06/28/10
24:08 10/15/09 09/24/09 10/30/09 12/14/09 12/21/09 02/01/10 05/2010 07/12/10
24:09 11/02/09 10/12/09 11/17/09 01/02/10 01/20/10 03/01/10 05/2010 07/30/10
24:10 11/16/09 10/23/09 12/01/09 01/15/10 01/20/10 03/01/10 05/2010 08/13/10
24:11 12/01/09 11/05/09 12/16/09 02/01/10 02/22/10 04/01/10 05/2010 08/28/10
24:12 12/15/09 11/20/09 12/30/09 02/15/10 02/22/10 04/01/10 05/2010 09/11/10
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1555
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1556
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1557
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1558
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1559
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1560
EXECUTIVE ORDERS
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1561
EXECUTIVE ORDERS
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1562
EXECUTIVE ORDERS
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1563
EXECUTIVE ORDERS
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1564
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1565
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1566
EXECUTIVE ORDERS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1567
IN ADDITION
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1568
NOTICE OF RULE MAKING PROCEEDINGS AND PUBLIC HEARING
NORTH CAROLINA BUILDING CODE COUNCIL
Notice of Rule-making Proceedings is hereby given by NC Building Code Council in accordance with G.S. 150B-21.5(d).
Citation to Existing Rule Affected by this Rule-Making: North Carolina Building, Electrical and Plumbing Codes.
Authority for Rule-making: G.S. 143-136; 143-138.
Reason for Proposed Action: To incorporate changes in the NC State Building Codes as a result of rulemaking petitions filed with
the NC Building Code Council and to incorporate changes proposed by the Council.
Public Hearing: March 9, 2009, 1:00PM, NC Department of Insurance, First Floor Classroom, 322 Chapanoke Road, Raleigh, NC
27603
Comment Procedures: Written comments may be sent to Chris Noles, Secretary, NC Building Code Council, NC Department of
Insurance, 322 Chapanoke Road, Suite 200, Raleigh, NC 27603. Comment period expires on April 17, 2009.
Statement of Subject Matter:
1. Request by Danny Hair, City of Raleigh, to amend the 2008 NC Electrical Code. The proposed amendment is as follows:
(Add an exception to section 338.10(A)(4)(a) of the 2008 NC Electrical Code)
(4) Installation Methods for Branch Circuits and Feeders.
(a) Interior Installations. In addition to the provisions of this article, Type SE service-entrance cable used for interior wiring shall
comply with the installation requirements of Part II of Article 334.
Exception: Type SE service-entrance cable not installed within framing member with thermal insulation or areas that may be
insulated in the future, shall not be required to comply with the 60 degree C ampacity limitation in section 334.80.
2. Request by New Hanover County Code Enforcement, to amend the 2008 NC Electrical Code. The proposed amendment is
as follows:
338.10 (B)(4)(a)
Interior installations. In addition to the provisions of this article, Type SE service-entrance cable used for interior wiring shall comply
with the installation requirements of Part II of Article 334, excluding 334.80.
3. Request by Dan Tingen, Chair, to amend the 2008 NC Electrical Code. The proposed amendment is as follows:
210.12 Arc-Fault Circuit-Interrupter Protection. (AFCI)
(B) Dwelling Units: All 125-volt, single phase, 15- and 20-ampere branch circuits supplying outlets installed in dwelling unit family
rooms, dining rooms, living rooms, parlors, libraries, dens, bedrooms, sunrooms, recreation rooms, closets, hallways, or similar rooms
or areas shall be protected by a listed arc-fault circuit interrupter, combination-type installed to provide protection of the branch
circuit.
4. Request by Al Bass, on behalf of the Plumbing Ad-Hoc Committee, to amend the 2009 NC Plumbing Code. The proposed
amendment is as follows:
901.2.1 Venting required. Every trap and trapped fixture shall be vented in accordance with one of the venting methods specified in
this chapter. All fixtures discharging downstream from a water closet shall be individually vented except as provided in Section 911.
5. Request by Al Bass, on behalf of the Plumbing Ad-Hoc Committee, to amend the 2009 NC Plumbing Code. The proposed
amendment is as follows:
DELETE: SECTION C103
SUBSURFACE LANDSCAPE IRRIGATION SYSTEMS
DELETE: FIGURE 1
GRAY WATER RECYCLING SYSTEM FOR SUBSURFACE LANDSCAPE IRRIGATION
PROPOSED RULES
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1569
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 12 – DEPARTMENT OF JUSTICE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Alarm Systems Licensing Board intends to amend the rule
cited as 12 NCAC 11 .0206.
Proposed Effective Date: July 1, 2009
Public Hearing:
Date: March 15, 2009
Time: 1:00 p.m.
Location: Bailey & Dixon, Conference Room, Suite 2500, 434
Fayetteville Street, Raleigh, NC 27601
Reason for Proposed Action: The Board currently requires by
rule that all licensees maintain a copy of the current quarterly
Employment Security Commission reports. The Board is
proposing that it be granted the authority to access
electronically the Employment Security Commission reports via
the internet.
Procedure by which a person can object to the agency on a
proposed rule: Comments or objections should be submitted on
or before the end of the comment period and in writing to the
N.C. Alarm Systems Licensing Board, c/o Director Terry Wright,
1631 Midtown Pace, Suite 104, Raleigh, NC 27609.
Comments may be submitted to: Terry Wright, 1631 Midtown
Place, Suite 104, Raleigh, NC 27609
Comment period ends: May 10, 2009
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 919-431-3000.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 11 - NORTH CAROLINA ALARM SYSTEMS
LICENSING BOARD
SECTION .0200 - PROVISIONS FOR LICENSEES
12 NCAC 11 .0206 RECORDS INSPECTION
(a) Records of a licensee maintained to satisfy the requirements
of G.S. Chapter 74D or 12 NCAC Chapter 11 shall be subject to
inspection by the administrator Director or his staff upon
demand between 8:00 a.m. and 5:00 p.m. Monday through
Friday.
(b) All licensees having registered employees shall submit a
copy of their current quarterly Employment Security
Commission NCUI 101-625 to the administrator's Director's
office at the same time the form is submitted to the Employment
Security Commission; and an additional list of non-Employment
Security Commission employees currently employed by the
licensee with the dates of employment. In lieu of submitting
copies of the quarterly reports, the Board may request, and the
licensee shall provide within 10 days of the request, the
businesses' Employment Security Commission account number
along with the personal identification number (PIN) so that the
Board may access the data electronically. Those licensees who
do not submit an Employment Security Commission NCUI
101-625 shall submit the names of their employees on a form
provided by the Board. The licensee of a firm, association, or
corporation that license a department or division shall also
submit additional documentation as required by Paragraph (c) of
this Rule.
(c) If a department or division of a firm, association, or
corporation is licensed, then the licensee must submit a list of all
employees who work with the department or division to the
Board prior to the issuance of the license. This list must
specifically indicate the employees that work with the
department or division and are listed on the report required in
Paragraph (b) of this Rule. If the department or division hires a
new employee, the licensee must report the hiring within 5 days
of employment.
(d) All records required to be kept by either Chapter 74D of the
General Statutes of North Carolina or by 12 NCAC 11 shall be
retained for at least three years. If the licensee is unable to
produce records as required by this Subpart, the licensee shall
give the Board it's Employment Security Commission account
number along with the personal identification number (PIN) so
that the Board may access the data electronically.
PROPOSED RULES
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1570
Authority G.S. 74D-5.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Coastal Resources Commission intends to amend the rules
cited as 15A NCAC 07B .0901; 07H .0309.
Proposed Effective Date: July 1, 2009
Public Hearing:
Date: April 29, 2009
Time: 5:00 p.m.
Location: Sea Trail Golf Resort and Convention Center, 211
Clubhouse Road, Sunset Beach, NC 28468
Reason for Proposed Action:
15A NCAC 07B .0901 – The Coastal Resources Commission
(CRC) is proceeding with rule making in order to clarify its
administrative rule governing CAMA Land Use Plan
Amendments.
15A NCAC 07H .0309 – The CRC is proceeding with rule
making in order to make changes to its administrative rules
governing development exceptions in the ocean hazard areas
under its jurisdiction.
Procedure by which a person can object to the agency on a
proposed rule: Objections may be filed in writing and
addressed to the Director, NC Division of Coastal Management,
400 Commerce Avenue, Morehead City, NC 28557.
Comments may be submitted to: Jim Gregson, 400
Commerce Avenue, Morehead City, NC 28557, phone (252) 808-
2808, fax (252) 247-3330
Comment period ends: May 15, 2009
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 919-431-3000.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 07 - COASTAL MANAGEMENT
SUBCHAPTER 07B – CAMA LAND USE PLANNING
SECTION .0900 – CAMA LAND USE PLAN
AMENDMENTS
15A NCAC 07B .0901 CAMA LAND USE PLAN
AMENDMENTS
(a) Normal Amendment Process:
(1) The CAMA Land Use Plan may be amended
and only the amended portions submitted for
CRC.CRC certification. If the local
government amends half or more of the
policies of the CAMA Land Use Plan, a new
locally adopted plan shall be submitted to the
CRC.
(A) Local public hearing and notice
requirements shall be in the same
manner as provided in 15A NCAC
07B .0801(a).
(B) Except for Land Use Plans that were
certified prior to August 1, 2002,
amendments and changes to the Local
Land Use Plan shall be consistent
with other required elements for the
local land use plan per the
requirements of Rule .0702 of this
Subchapter.
(2) The local government proposing an
amendment to its CAMA Land Use Plan shall
provide to the Executive Secretary of the CRC
or her/his designee written notice of the public
hearing, a copy of the proposed amendment
(including text and maps as applicable), and
the reasons for the amendment no less than 30
five business days prior to publication of the
public hearing. hearing notice. After the
public hearing, the local government shall
provide the Executive Secretary or her/his
designee with a copy of the locally adopted
amendment no earlier than 45 days and no
later than 30 days prior to the next CRC
meeting for CRC certification. If the local
government fails to submit the requested
documents as specified above and the
resolution provided in Subparagraph (5) of this
Paragraph, to the Executive Secretary within
the specified timeframe, the local government
shall be able to resubmit the documents within
the specified timeframe for consideration at
the following CRC meeting.
(3) For joint plans, originally adopted by each
participating jurisdiction, each government
shall retain its sole and independent authority
PROPOSED RULES
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1571
to make amendments to the plan as it affects
their jurisdiction.
(4) CRC review and action on CAMA Land Use
Plan amendments shall be in the same manner
as provided in 15A NCAC 07B .0802 (b), (c),
(d) and (e), except amendments to Land Use
Plans which were certified prior to August 1,
2002 are exempt from subsection
.0802(c)(3)(D).
(5) The local resolution of adoption shall include
findings which demonstrate that amendments
to policy statements or to the Future Land Use
Plan Map (FLUP) have been evaluated for
their consistency with other existing policies.
(b) Delegation of CRC Certification of Amendments to the
Executive Secretary:
(1) A local government that desires to have the
Executive Secretary instead of the CRC certify
a CAMA Land Use Plan amendment shall first
meet the requirements in Subparagraphs (a)(1)
through (3) (5)of this Rule and the following
criteria defined in Parts (b)(1)(A) through (D)
of this Rule. The local government may then
request the Executive Secretary to certify the
amendment. The Executive Secretary shall
make a determination that all criteria have
been met, and mail notification to the local
government and CRC members, no later than
two weeks after receipt of the request for
certification. The CRC's delegation to the
Executive Secretary of the authority to certify
proposed amendments is limited to
amendments that meet the following criteria:
(A) Minor changes in policy statements
or objectives for the purpose of
clarification of intent; or
(B) Modification of any map that does
not impose new land use categories in
areas least suitable for development
as shown on the Land Suitability
Map; or
(C) New data compilations and associated
statistical adjustments that do not
suggest policy revisions; or
(D) More detailed identification of
existing land uses or additional maps
of existing or natural conditions that
do not affect any policies in the
CAMA Land Use Plan.
(2) If the Executive Secretary certifies the
amendment, the amendment shall become final
upon certification of the Executive Secretary,
and is not subject to further CRC review
described in 15A NCAC 07B .0802
(Presentation to CRC for Certification).
(3) If the Executive Secretary denies certification
of the amendment, the local government shall
submit its amendment for review by the CRC
in accordance with the regular plan
certification process in 15A NCAC 07B .0802
(Presentation to CRC for Certification).
(c) Any amendments to the text or maps of the CAMA Land
Use Plan shall be incorporated in context in all available copies
of the plan and shall be dated to indicate the dates of local
adoption and CRC certification. The amended P CAMA Land
Use Plan shall be maintained as required by G.S. 113A-110(g).
(d) Within 90 days after certification of a CAMA Land Use
Plan amendment, the local government shall provide one copy of
the amendment to each jurisdiction with which it shares a
common border, and to the regional planning entity.
(e) A local government that receives Sustainable Community
funding from the Department pursuant to 15A NCAC 07L shall
formulate and submit to the CRC for certification a CAMA Land
Use Plan Addendum during its first year as a Sustainable
Community, and if new planning rules have been adopted by the
CRC, shall update the CAMA Land Use Plan within six years of
adoption of these new planning rules.
Authority G.S. 113A-107(a); 113A-110; 113A-124.
SUBCHAPTER 07H - STATE GUIDELINES FOR AREAS
OF ENVIRONMENTAL CONCERN
SECTION .0300 - OCEAN HAZARD AREAS
15A NCAC 07H .0309 USE STANDARDS FOR OCEAN
HAZARD AREAS: EXCEPTIONS
(a) The following types of development shall be permitted
seaward of the oceanfront setback requirements of Rule .0306(a)
of the Subchapter if all other provisions of this Subchapter and
other state and local regulations are met:
(1) campsites;
(2) driveways and parking areas with clay, packed
sand or gravel;
(3) elevated decks not exceeding a footprint of
500 square feet;
(4) beach accessways consistent with Rule
.0308(c) of this Subchapter;
(5) unenclosed, uninhabitable gazebos with a
footprint of 200 square feet or less;
(6) uninhabitable, single-story storage sheds with
a foundation or floor consisting of wood, clay,
packed sand or gravel, and a footprint of 200
square feet or less;
(7) temporary amusement stands;
(8) sand fences; and
(9) swimming pools.
In all cases, this development shall be permitted only if it is
landward of the vegetation line; line or static vegetation line,
whichever is applicable; involves no alteration or removal of
primary or frontal dunes which would compromise the integrity
of the dune as a protective landform or the dune vegetation; has
overwalks to protect any existing dunes; is not essential to the
continued existence or use of an associated principal
development; is not required to satisfy minimum requirements of
local zoning, subdivision or health regulations; and meets all
other non-setback requirements of this Subchapter.
PROPOSED RULES
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1572
(b) Where application of the oceanfront setback requirements of
Rule .0306(a) of this Subchapter would preclude placement of
permanent substantial structures on lots existing as of June 1,
1979, single family residential structures buildings shall be
permitted seaward of the applicable setback line in ocean
erodible areas, but not inlet hazard areas or unvegetated beach
areas, if each of the following conditions are met:
(1) The development is set back from the ocean
the maximum feasible distance possible on the
existing lot and the development is designed to
minimize encroachment into the setback area;
(2) The development is at least 60 feet landward
of the vegetation line;line or static vegetation
line, whichever is applicable;
(3) The development is not located on or in front
of a frontal dune, but is entirely behind the
landward toe of the frontal dune;
(4) The development incorporates each of the
following design standards, which are in
addition to those required by Rule .0308(d) of
this Subchapter.
(A) All pilings shall have a tip penetration
that extends to at least four feet below
mean sea level;
(B) The footprint of the structure shall be
no more than 1,000 square feet or 10
percent of the lot size, whichever is
greater. feet, and the total floor area
of the structure shall be no more than
2,000 square feet. For the purpose of
this Section, roof-covered decks and
porches that are structurally attached
shall be included in the calculation of
footprint;
(C) Driveways and parking areas shall be
constructed of clay, packed sand or
gravel except in those cases where the
development does not abut the ocean
and is located landward of a paved
public street or highway currently in
use. In those cases concrete, asphalt
or turfstone may also be used.
(D) No portion of a building's total floor
area, including elevated portions that
are cantilevered, knee braced or
otherwise extended beyond the
support of pilings or footings, may
extend oceanward of the total floor
area of the landward-most adjacent
building. When the geometry or
orientation of a lot precludes the
placement of a building in line with
the landward most adjacent structure
of similar use, an average line of
construction shall be determined by
the Division of Coastal Management
on a case-by-case basis in order to
determine an ocean hazard setback
that is landward of the vegetation
line, static vegetation line or
measurement line, whichever is
applicable, a distance no less than 30
times the shoreline erosion rate or 60
feet, whichever is greater; and
(E) Development setbacks shall be
calculated from the shoreline erosion
rate in place at the time of permit
issuance.
(5) All other provisions of this Subchapter and
other state and local regulations are met. If the
development is to be serviced by an on-site
waste disposal system, a copy of a valid permit
for such a system shall be submitted as part of
the CAMA permit application.
(c) Reconfiguration of lots and projects that have a grandfather
status under Paragraph (b) of this Rule shall be allowed provided
that the following conditions are met:
(1) Development is setback from the first line of
stable natural vegetation a distance no less
than that required by the applicable exception;
(2) Reconfiguration shall not result in an increase
in the number of buildable lots within the
Ocean Hazard AEC or have other adverse
environmental consequences; and
(3) Development on lots qualifying for the
exception in Paragraph (b) of this Rule shall
meet the requirements of Paragraphs (1)
through (5) of that Paragraph.
For the purposes of this Rule, an existing lot is a lot or tract of
land which, as of June 1, 1979, is specifically described in a
recorded plat and which cannot be enlarged by combining the lot
or tract of land with a contiguous lot(s) or tract(s) of land under
the same ownership. The footprint is defined as the greatest
exterior dimensions of the structure, including covered decks,
porches, and stairways, when extended to ground level.
(d) The following types of water dependent development shall
be permitted seaward of the oceanfront setback requirements of
Rule .0306(a) of this Section if all other provisions of this
Subchapter and other state and local regulations are met:
(1) piers providing public access (excluding any
pier house, office, or other enclosed areas);
and access; and
(2) maintenance and replacement of existing state-owned
bridges and causeways and accessways
to such bridges.
(e) Where application of the oceanfront setback requirements of
Rule .0306(a) of this Section would preclude replacement of a
pier house associated with an existing ocean pier, replacement of
the Replacement or construction of a pier house associated with
an ocean pier shall be permitted if each of the following
conditions are is met:
(1) The associated ocean pier provides public
access for fishing or and other recreational
purposes whether on a commercial, public, or
nonprofit basis;
(2) The pier house is set back from the ocean the
maximum feasible distance while maintaining
existing parking and sewage treatment
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23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1573
facilities and is designed to reduce
encroachment into the setback area;
Commercial, non-water dependent uses of the
ocean pier and associated pier house shall be
limited to restaurants and retail services.
Residential uses, lodging, and parking areas
shall be prohibited;
(3) The pier house shall not be enlarged beyond its
original dimensions as of January 1, 1996; be
limited to a maximum of two stories;
(4) A new pier house shall not exceed a footprint
of 5,000 square feet and shall be located
landward of mean high water;
(5) A replacement pier house may be rebuilt not to
exceed its most recent footprint or a footprint
of 5,000 square feet, whichever is larger;
(4)(6) The pier house shall be rebuilt to comply with
all other provisions of this Subchapter; and
(5)(7) If the associated pier has been destroyed or
rendered unusable, replacement or expansion
of the associated pier house shall be permitted
only if the pier is also being replaced and
returned to its original function.
(f) In addition to the development authorized under Paragraph
(d) of this Rule, small scale, non-essential development that does
not induce further growth in the Ocean Hazard Area, such as the
construction of single family piers and small scale erosion
control measures that do not interfere with natural ocean front
oceanfront processes, shall be permitted on those non-oceanfront
portions of shoreline that exhibit features characteristic of an
Estuarine Shoreline. Such features include the presence of
wetland vegetation, and lower wave energy and lower erosion
rates than in the adjoining Ocean Erodible Area. Such
development shall be permitted under the standards set out in
Rule .0208 of this Subchapter. For the purpose of this Rule,
small scale is defined as those projects which are eligible for
authorization under 15A NCAC 07H .1100, .1200 and 07K
.0203.
Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b)(6)a;
113A-113(b)(6)b; 113A-113(b)(6)d; 113A-124.
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Coastal Resources Commission intends to amend the rule
cited as 15A NCAC 07H .0205 with changes from the proposed
text noticed in the Register, Volume 23, Issue 03, pages 201-202.
Proposed Effective Date: July 1, 2009
Public Hearing:
Date: April 29, 2009
Time: 5:00 p.m.
Location: Sea Trail Golf Resort and Convention Center, 211
Clubhouse Road, Sunset Beach, NC 28468
Reason for Proposed Action: The CRC is continuing with rule
making in order to amend its administrative rule that governs
coastal wetlands. The CRC previously published proposed
changes to this rule in the 23:03 issue of the NC Register which
included notice of a public hearing which was held on
September 24, 2008 as well as a comment period and received a
number of comments from interested parties. The CRC is
proposing additional changes based on those comments.
Procedure by which a person can object to the agency on a
proposed rule: Objections may be filed in writing and
addressed to the Director, NC Division of Coastal Management,
400 Commerce Avenue, Morehead City, NC 28557.
Written comments may be submitted to: Jim Gregson, 400
Commerce Avenue, Morehead City, NC 28557, phone (252) 808-
2808, fax (252) 247-3330
Comment period ends: May 15, 2009
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 919-431-3000.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 07 - COASTAL MANAGEMENT
SUBCHAPTER 07H - STATE GUIDELINES FOR AREAS
OF ENVIRONMENTAL CONCERN
SECTION .0200 – THE ESTUARINE AND OCEAN
SYSTEMS
15A NCAC 07H .0205 COASTAL WETLANDS
(a) Description. Coastal wetlands are defined as any salt marsh
or other marsh subject to regular or occasional flooding by tides,
including wind tides (whether or not the tide waters reach the
marshland areas through natural or artificial watercourses),
provided this shall not include hurricane or tropical storm tides.
Coastal wetlands contain some, but not necessarily all, any of
the following marsh plant species:
(1) Cord Grass (Spartina alterniflora),
(2) Black Needlerush (Juncus roemerianus),
(3) Glasswort (Salicornia spp.),
(4) Salt Grass (Distichlis spicata),
(5) Sea Lavender (Limonium spp.),
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23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1574
(6) Bulrush (Scirpus spp.),
(7) Saw Grass (Cladium jamaicense),
(8) Cat-tail (Typha spp.),
(9) Salt Meadow Grass (Spartina patens),
(10) Salt Reed Grass (Spartina cynosuroides).
The coastal wetlands AEC includes any contiguous lands
designated by the Secretary of ENR DENR pursuant to G.S.
113-230 (a).
(b) Significance. The unique productivity of the estuarine and
ocean system is supported by detritus (decayed plant material)
and nutrients that are exported from the coastal marshlands. The
amount of exportation and degree of importance appears to be
variable from marsh to marsh, depending primarily upon its
frequency of inundation and inherent characteristics of the
various plant species. Without the marsh, the high productivity
levels and complex food chains typically found in the estuaries
could not be maintained.
Man harvests various aspects of this productivity when he fishes,
hunts, and gathers shellfish from the estuary. Estuarine
dependent species of fish and shellfish such as menhaden,
shrimp, flounder, oysters, and crabs currently make up over 90
percent of the total value of North Carolina's commercial catch.
The marshlands, therefore, support an enormous amount of
commercial and recreational businesses along the seacoast.
The roots, rhizomes, stems, and seeds of coastal wetlands act as
good quality waterfowl and wildlife feeding and nesting
materials. In addition, coastal wetlands serve as the first line of
defense in retarding estuarine shoreline erosion. The plant stems
and leaves tend to dissipate wave action, while the vast network
of roots and rhizomes resists soil erosion. In this way, the
coastal wetlands serve as barriers against flood damage and
control erosion between the estuary and the uplands.
Marshlands also act as nutrient and sediment traps by slowing
the water which flows over them and causing suspended organic
and inorganic particles to settle out. In this manner, the nutrient
storehouse is maintained, and sediment harmful to marine
organisms is removed. Also, pollutants and excessive nutrients
are absorbed by the marsh plants, thus providing an inexpensive
water treatment service.
(c) Management Objective. To conserve and manage coastal
wetlands so as to safeguard and perpetuate their biological,
social, economic and aesthetic values; to coordinate and
establish a management system capable of conserving and
utilizing coastal wetlands as a natural resource essential to the
functioning of the entire estuarine system.
(d) Use Standards. Suitable land uses shall be are those
consistent with the management objective in this Rule. Highest
priority of use shall be is allocated to the conservation of
existing coastal wetlands. Second priority of coastal wetland use
shall be is given to those types of development activities that
require water access and cannot function elsewhere.
Unacceptable Examples of unacceptable land uses may include,
but would not be limited to, the following examples: restaurants
and businesses; residences, apartments, motels, hotels, and
trailer parks; parking lots and private roads and highways; and
factories. include: restaurants, businesses, residences,
apartments, motels, hotels, trailer parks, parking lots, private
roads, highways and factories. Examples of acceptable land uses
may include utility easements, fishing piers, docks, wildlife
habitat management activities, and agricultural uses, uses such
as farming and forestry drainage, drainage as permitted under
North Carolina's Dredge and Fill Act Law or other applicablea
applicable laws.
In every instance, the particular location, use, and design
characteristics shall be in accord with the general use standards
for coastal wetlands, estuarine waters, and public trust areas
described in Rule .0208 of this Section.
(e) Alteration of Coastal Wetlands. Alteration of coastal
wetlands includes mowing or cutting of coastal wetlands
vegetation whether by mechanized equipment or manual means.
Alteration of coastal wetlands by federal or state resource
management agencies as a part of planned resource management
activities is exempt from the requirements of this Subsection.
Mowing or cutting of coastal wetlands by academic institutions
associated with research efforts shall be allowed subject to
approval from the Division of Coastal Management. Alteration
of coastal wetlands is governed according to the following
provisions:
(1) Alteration of coastal wetlands is exempt from
the permit requirements of the Coastal Area
Management Act (CAMA) when conducted in
accordance with the following criteria:
(A) Coastal wetlands may be mowed or
cut to a height of no less than two
feet, as measured from the coastal
wetland substrate, at any time and at
any frequency throughout the year;
(B) Coastal wetlands may be mowed or
cut to a height of no less than six
inches, as measured from the coastal
wetland substrate, once between each
December 1 and March 31;
(C) Alteration of the substrate is not
allowed;
(D) All cuttings/clippings shall remain in
place as they fall;
(E) Coastal wetlands may be mowed or
cut to a height of no less than six
inches, as measured from the coastal
wetland substrate, to create an access
path four feet wide or less on
waterfront lots without a pier access;
and
(F) Coastal wetlands may be mowed or
cut by utility companies as necessary
to maintain utility easements.
(2) Coastal wetland alteration not meeting the
exemption criteria of this Rule shall require a
CAMA permit. CAMA permit applications
for coastal wetland alterations shall be subject
to review by the North Carolina Wildlife
Commission, North Carolina Division of
Marine Fisheries, U.S. Fish and Wildlife
Service, and National Marine Fisheries Service
in order to determine whether or not the
proposed activity will have an adverse impact
on the habitat or fisheries resources.
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23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1575
Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b)(1);
113A-124.
TITLE 25 – OFFICE OF STATE PERSONNEL
Notice is hereby given in accordance with G.S. 150B-21.2 that
the State Personnel Commission intends to amend the rule cited
as 25 NCAC 01E .1006.
Proposed Effective Date: August 1, 2009
Public Hearing:
Date: April 22, 2009
Time: 10:00 a.m.
Location: Office of State Personnel, Administration Building,
3rd floor, 121 West Jones Street, Raleigh, NC 27603
Reason for Proposed Action: We are proposing to change the
name of this rule from Compensatory Leave to Compensatory
Time to accommodate the language used in the BEACON
System. In addition, it is recommended that the amount of
compensatory time awarded be changed from " on an hour for
hour" bases to "at a rate not to exceed the individual's straight
time equivalent rate." This will allow agencies to grant
compensatory time at a rate less than hour for hour if
appropriate.
Procedure by which a person can object to the agency on a
proposed rule: A person may object to these proposed rules by
one of the following methods: 1. A written letter to Peggy Oliver,
HR Policy Administrator, Office of State Personnel, 1331 Mail
Service Center, Raleigh, NC 27699-1331. 2. An email to
peggy.oliver@osp.nc.gov. 3. A telephone call to Peggy Oliver at
(919)807-4832.
Comments may be submitted to: Peggy Oliver, 1331 Mail
Service Center, Raleigh, NC 27699-1331, phone (919)807-
4832, fax (919)715-9750, email peggy.oliver@osp.nc.gov
Comment period ends: April 22, 2009
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 919-431-3000.
Fiscal Impact:
State
Local
Substantive (>$3,000,000)
None
CHAPTER 01 - OFFICE OF STATE PERSONNEL
SUBCHAPTER 01E - EMPLOYEE BENEFITS
SECTION .1000 - MISCELLANEOUS LEAVE
25 NCAC 01E .1006 COMPENSATORY TIME
Under the state's overtime compensation policy certain
employees are designated as administrative, executive or
professional. Employees in these categories are exempt from the
provision for overtime pay. To grant these employees
compensating time is a decision that must be made by the
agency head. When compensatory leave time is granted to
administrative, executive or professional employees, the
following applies:
(1) Amount. Compensatory time is granted on an
hour for hour basis.awarded at a rate not to
exceed the individual's straight time equivalent
rate.
(2 Non-cumulative. Compensatory leave time is
not cumulative beyond a 12-month period.
For this reason, an employee must be required
to take compensatory leave time as soon as
possible after it is credited.
(3) Non-transferable. Compensatory leave time
may not be transferred to any other type of
leave or to another agency.
(4) Separation. Compensatory leave time is lost
when an employee is separated from state
service. The employee's separation date may
not be moved forward in order to pay for
compensatory time.
Authority G.S. 126-4.
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23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1576
Note from the Codifier: The rules published in this Section of the NC Register are temporary rules reviewed and approved by the
Rules Review Commission (RRC) and have been delivered to the Codifier of Rules for entry into the North Carolina Administrative
Code. A temporary rule expires on the 270th day from publication in the Register unless the agency submits the permanent rule to the
Rules Review Commission by the 270th day.
This section of the Register may also include, from time to time, a listing of temporary rules that have expired. See G.S. 150B-21.1
and 26 NCAC 02C .0500 for adoption and filing requirements.
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Rule-making Agency: Division of Health Service Regulation
Rule Citation: 10A NCAC 14C .1403, 1902-.1905, .2002,
.2103, .2701
Effective Date: February 1, 2009
Date Approved by the Rules Review Commission: January
22, 2009
Reason for Action: Each year, changes to existing Certificate
of Need rules are required to compliment or to ensure
consistency with the State Medical Facilities Plan. The effective
date of the 2009 SMFP is January 1, 2009.
CHAPTER 14 – DIRECTOR, DIVISION OF HEALTH
SERVICE REGULATION
SUBCHAPTER 14C – CERTIFICATE OF NEED
REGULATIONS
SECTION .1400 – CRITERIA AND STANDARDS FOR
NEONATAL SERVICES
10A NCAC 14C .1403 PERFORMANCE STANDARDS
(a) An applicant shall demonstrate that the proposed project is
capable of meeting the following standards:
(1) an applicant proposing a new Level I or Level
II services, or additional Level II beds shall
demonstrate that the occupancy of the
applicant's total number of neonatal beds is
projected to be at least 50% during the first
year of operation and at least 65% during the
third year of operation following completion
of the proposed project;
(2)(1) if an applicant proposes an increase in the
number of the facility's existing Level II, Level
III or Level IV beds, the overall average
annual occupancy of the total number of
existing Level II, Level III and Level IV beds
in the facility is at least 75%, 75 percent, over
the 12 months immediately preceding the
submittal of the proposal; and
(3)(2) if an applicant is proposing to develop new or
additional Level II, Level III or Level IV beds,
the projected occupancy of the total number of
Level II, Level III and Level IV beds proposed
to be operated during the third year of
operation of the proposed project shall be at
least 75%. 75 percent.
(4)(3) The applicant shall document the assumptions
and provide data supporting the methodology
used for each projection in this rule.
(b) If an applicant proposes to develop a new Level III or Level
IV service, the applicant shall document that an unmet need
exists in the applicant's defined neonatal service area. area,
unless the State Medical Facilities Plan includes a need
determination for neonatal beds in the service area. The need for
Level III and Level IV beds shall be computed for the applicant's
neonatal service area by:
(1) identifying the annual number of live births
occurring at all hospitals within the proposed
neonatal service area, using the latest available
data compiled by the State Center for Health
Statistics;
(2) identifying the low birth weight rate (percent
of live births below 2,500 grams) for the births
identified in (1) of this Paragraph, using the
latest available data compiled by the State
Center for Health Statistics;
(3) dividing the low birth weight rate identified in
(2) of this Paragraph by .08 and subsequently
multiplying the resulting quotient by four; and
(4) determining the need for Level III and Level
IV beds in the proposed neonatal service area
as the product of:
(A) the product derived in (3) of this
Paragraph, and
(B) the quotient resulting from the
division of the number of live births
in the initial year of the determination
identified in (1) of this Paragraph by
the number 1000.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever
is sooner;
Eff. January 4, 1994;
Temporary Amendment Eff. March 15, 2002;
Amended Eff. April 1, 2003;
Temporary Amendment Eff. February 1, 2009.
SECTION .1900 – CRITERIA AND STANDARDS FOR
RADIATION THERAPY EQUIPMENT
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23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1577
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 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 by county in each of the first three
years of operation following completion of the
proposed project.
(c) An applicant proposing to acquire a linear accelerator for
development of a multidisciplinary prostate health center
pursuant to a need determination for a demonstration project in
the State Medical Facilities Plan shall provide the following
additional information:
(1) description of all services to be provided by
the proposed multidisciplinary prostate health
center, including a description of each of the
following services:
(A) urology services,
(B) medical oncology services,
(C) biofeedback therapy,
(D) chemotherapy,
(E) brachytherapy, and
(F) living skills counseling and therapy;
(2) documentation that urology services, medical
and radiation oncology services, biofeedback
therapy, brachytherapy and post-treatment
living skills counseling and therapy will be
provided in the same building;
(3) description of any services that will be
provided by other facilities or in different
buildings;
(4) demographics of the population in the county
in which the proposed multidisciplinary
prostate health center will be located,
including:
(A) percentage of the population in the
county that is African American,
(B) the percentage of the population in
the county that is male,
(C) the percentage of the population in
the county that is African American
male,
(D) the incidence of prostate cancer for
the African American male
population in the county, and
(E) the mortality rate from prostate
cancer for the African American male
population in the county;
(5) documentation that the proposed center is
located within walking distance of an
established bus route and within five miles of a
minority community;
(6) documentation that the multiple medical
disciplines in the center will collaborate to
create and maintain a single or common
medical record for each patient and conduct
multidisciplinary conferences regarding each
patient's treatment and follow-up care;
(7) documentation that the center will establish its
own prostate/urological cancer tumor board
for review of cases;
(8) copy of the center's written policies that
prohibit the exclusion of services to any
patient on the basis of age, race, religion,
disability or the patient's ability to pay;
(9) copy of written strategies and activities the
center will follow to assure its services will be
accessible by patients without regard to their
ability to pay;
(10) description of the center's outreach activities
and the manner in which they complement
existing outreach initiatives;
(11) documentation of number and type of clinics
to be conducted to screen patients at risk for
prostate cancer;
(12) written description of patient selection criteria,
including referral arrangements for high-risk
patients;
(13) commitment to prepare an annual report at the
end of each of the first three operating years,
to be submitted to the Medical Facilities
Planning Section and the Certificate of Need
Section, that shall include:
(A) the total number of patients treated;
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23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1578
(B) the number of African American
persons treated;
(C) the number of persons in other
minority populations treated; and
(D) the number of insured, underinsured
and uninsured patients served by type
of payment category;
(14) documentation of arrangements made with a
third party researcher to evaluate, during the
fourth operating year of the center, the efficacy
of the clinical and outreach initiatives on
prostate and urological cancer treatment, and
develop recommendations regarding the
advantages and disadvantages of replicating
the project in other areas of the State. The
results of the evaluation and recommendations
shall be submitted in a report to the Medical
Facilities Planning Section and Certificate of
Need Section in the first quarter of the fifth
operating year of the demonstration project;
and
(15) if the third party researcher is not a historically
black university, document the reasons for
using a different researcher for the project.
History Note: Authority G.S. 131E-177(1); 131E-183.
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever
is sooner;
Eff. January 4, 1994;
Amended Eff. November 1, 1996;
Temporary Amendment Eff. January 1, 1999;
Temporary Amendment Eff. January 1, 1999 Expired on October
12, 1999;
Temporary Amendment Eff. January 1, 2000;
Temporary Amendment effective January 1, 2000 amends and
replaces a permanent rulemaking originally proposed to be
effective August 2000;
Amended Eff. April 1, 2001;
Temporary Amendment Eff. January 1, 2005;
Amended Eff. November 1, 2005;
Temporary Amendment Eff. February 1, 2009.
10A NCAC 14C .1903 PERFORMANCE STANDARDS
(a) An applicant proposing to acquire a linear accelerator shall
demonstrate that each of the following standards will be met:
(1) an applicant's existing linear accelerators
located in the proposed radiation therapy
service area performed at least 6,750 ESTV
treatments per machine or served at least 250
patients per machine in the twelve months
prior to the date the application was submitted;
(2) each proposed new linear accelerator will be
utilized at an annual rate of 250 patients or
6,750 ESTV treatments during the third year
of operation of the new equipment; and
(3) an applicant's existing linear accelerators
located in the proposed radiation therapy
service area are projected to be utilized at an
annual rate of 6,750 ESTV treatments or 250
patients per machine during the third year of
operation of the new equipment.
(b) A linear accelerator shall not be held to the standards in
Paragraph (a) of this Rule if the applicant provides
documentation that the linear accelerator has been or will be
used exclusively for clinical research and teaching.
(c) An applicant proposing to acquire radiation therapy
equipment other than a linear accelerator shall provide the
following information:
(1) the number of patients that are projected to
receive treatment from the proposed radiation
therapy equipment, classified by type of
equipment, diagnosis, treatment procedure,
and county of residence; and
(2) the maximum number and type of procedures
that the proposed equipment is capable of
performing.
(d) The applicant shall document all assumptions and provide
data supporting the methodology used to determine projected
utilization as required in this Rule.
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. January 4, 1994;
Amended Eff. November 1, 1996
Temporary Amendment Eff. January 1, 1999;
Temporary Amendment effective January 1, 1999 expired
October 12, 1999;
Temporary Amended Eff. January 1, 2000;
Temporary Amendment Eff. February 1, 2006;
Amended Eff. November 1, 2006.
Temporary Amendment effective January 1, 2000 amends and
replaces a permanent rulemaking originally proposed to be
effective August 2000;
Amended Eff. April 1, 2001;
Temporary Amendment Eff. March 15, 2002; January 1, 2002;
Amended Eff. April 1, 2003;
Temporary Amendment Eff. February 1, 2008;
Amended Eff. November 1, 2008;
Temporary Amendment Eff. February 1, 2009.
10A NCAC 14C .1904 SUPPORT SERVICES
(a) An applicant proposing to acquire radiation therapy
equipment shall document that the following items shall be
available; and if any item shall not be available, the applicant
shall provide substantive information obviating the need for that
item:
(1) an organized program of radiation therapy
continuing education for radiation therapists,
technologists and medical staff;
(2) a program for the collection of utilization data
relative to the applicant's provision of radiation
therapy services;
(3) medical laboratory services;
(4) pathology services; and
(5) pharmaceutical support services.
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(b) An applicant proposing to acquire a linear accelerator for
development of a multidisciplinary prostate health center
pursuant to a need determination for a demonstration project in
the State Medical Facilities Plan shall provide a written
description of the center's plans and strategies to establish:
(1) an African American Prostate Cancer
Education/Outreach Program that will partner
with and complement existing support groups,
such as the N.C. Minority Prostate Cancer
Awareness Action Team; and
(2) an Advisory Board composed of
representatives of prostate cancer advocacy
groups, prostate cancer patients and survivors
that will meet regularly to provide feedback to
the center regarding outreach practices which
are effective or which need to be changed.
History Note: Temporary Adoption Eff. September 1, 1993
for a period of 180 days or until the permanent rule becomes
effective, whichever is sooner;
Authority G.S. 131E-177(1); 131E-183(b);
Eff. January 4, 1994;
Temporary Amendment Eff. February 1, 2009.
10A NCAC 14C .1905 STAFFING AND STAFF
TRAINING
(a ) An applicant proposing to acquire radiation therapy
equipment shall document the number and availability of staff or
provide evidence that obviates the need for staff in the following
areas:
(1) Radiation Oncologist;
(2) Radiation Physicist;
(3) Dosimetrist or Physics Assistant;
(4) Radiation Therapist;
(5) Radiation-Oncology Administrator;
(6) Registered Nurse or LPN;
(7) Physical Therapist;
(8) Dietician;
(9) Pharmacist;
(10) Social Worker; and
(11) Maintenance Engineer.
(b) An applicant proposing to acquire a linear accelerator for
development of a multidisciplinary prostate health center
pursuant to a need determination for a demonstration project in
the State Medical Facilities Plan shall document that the center
will have:
(1) a medical director who is either a urologist
certified by the American Board of Urology, a
medical oncologist certified by the American
Board of Internal Medicine, or a radiation
oncologist certified by the American Board of
Radiology; and
(2) a multidisciplinary team consisting of medical
oncologists, radiation oncologists, urologists,
urologic pharmacologists, pathologists and
therapy specialists.
History Note: Temporary Adoption Eff. September 1, 1993
for a period of 180 days or until the permanent rule becomes
effective, whichever is sooner;
Authority G.S. 131E-177(1); 131E-183;
Eff. January 4, 1994;
Amended Eff. November 1, 1996;
Temporary Amendment Eff. February 1, 2009.
SECTION .2000 – CRITERIA AND STANDARDS FOR
HOME HEALTH SERVICES
10A NCAC 14C .2002 INFORMATION REQUIRED OF
APPLICANT
(a) An applicant shall identify:
(1) the counties that are proposed to be served by
the new office;
(2) the proposed types of services to be provided,
including a description of each discipline;
(3) the projected total unduplicated patient count
of the new office for each of the first two years
of operation;
(4) the projected number of patients to be served
per service discipline for each of the first two
years of operation;
(5) the projected number of visits by service
discipline for each of the first two years of
operation;
(6) within each service discipline, the average
number of patient visits per day that are
anticipated to be performed by each staff
person;
(7) the projected average annual cost per visit for
each service discipline;
(8) the projected charge by payor source for each
service discipline;
(9) the names of the anticipated sources of
referrals; and
(10) documentation of attempts made to establish
working relationships with the sources of
referrals.
All assumptions, including the specific methodology by which
patient utilization and costs are projected, shall be clearly stated.
(b) An applicant shall specify the proposed site on which the
office is proposed to be located. If the proposed site is not
owned by or under the control of the applicant, the applicant
shall specify an alternate site. The applicant shall provide
documentation from the owner of the sites or a realtor that the
proposed and alternate site(s) are available for acquisition.
(c) An applicant proposing to establish a new home health
agency pursuant to a need determination in the Sate Medical
Facilities Plan to meet the special needs of the non-English
speaking, non-Hispanic population shall provide the following
additional information:
(1) for each staff person in the proposed home
health agency, identify the foreign language in
which the person is fluent to document the
home health agency will have employees
fluent in multiple foreign languages other than
Spanish, including Russian;
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1580
(2) description of the manner in which the
proposed home health agency will actively
market and provide its services to non-English
speaking, non-Hispanic persons; and
(3) documentation that the proposed home health
agency will accept referrals of non-English
speaking, non-Hispanic persons from other
home health agencies and entities, within
Medicare Conditions of Participation and
North Carolina licensure rules.
History Note: Authority G.S. 131E-177(1); 131E-183;
Eff. March 1, 1996;
Temporary Amendment Eff. February 1, 2009.
SECTION .2100 – CRITERIA AND STANDARDS FOR
SURGICAL SERVICES AND OPERATING ROOMS
10A NCAC 14C .2103 PERFORMANCE STANDARDS
(a) In projecting utilization, the operating rooms shall be
considered to be 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:
(1) the applicant reasonably demonstrates the need
for the number of proposed operating rooms in
the facility, which is the subject of this review,
in the third operating year of the project based
on the following formula: {[(Number of
facility's projected inpatient cases, excluding
trauma cases reported by Level I, II, or III I or
II trauma centers, cases reported by designated
burn intensive care units and cases performed
in dedicated open heart and C-section rooms,
times 3.0 hours) plus (Number of facility's
projected outpatient cases times 1.5 hours)]
divided by 1872 hours} minus the facility's
total number of existing, existing and
approved and proposed operating rooms,
rooms and operating rooms proposed in
another pending application, excluding one
operating room for Level I, II or III I or II
trauma centers, one operating room for
facilities with designated burn intensive care
units, and all dedicated open heart and C-section
operating rooms. The number of rooms
needed is the positive difference rounded to
the next highest number for fractions of 0.50
or greater; or determined as follows:
(A) in a service area which has more than
10 operating rooms and the positive
difference is 0.5 or greater, the need
is the next highest whole number for
fractions of 0.5 or greater and the
next lowest whole number for
fractions less than 0.5; except if the
difference is a negative number or a
positive number less than 0.5, the
need is zero;
(B) in a service area which has six to 10
operating rooms and the positive
difference is 0.3 or greater, the need
is the next highest whole number for
fractions of 0.3 or greater and the
next lowest whole number for
fractions less than 0.3, except if the
difference is a negative number or a
positive number less than 0.3, the
need is zero;
(C) in a service area which has five or
fewer operating rooms and the
positive difference is 0.2 or greater,
the need is the next highest whole
number for fractions of 0.2 or greater
and the next lowest whole number for
fractions less than 0.2; except if the
difference is a negative number or a
positive number less than 0.2, the
need is zero;
or
(2) the applicant demonstrates conformance of the
proposed project to Policy AC-3 in the State
Medical Facilities Plan titled "Exemption
From Plan Provisions for Certain Academic
Medical Center Teaching Hospital Projects."
(c) A proposal to establish a new ambulatory surgical facility, to
increase the number of operating rooms (excluding dedicated C-section
operating rooms) except relocations of existing operating
rooms between existing licensed facilities within the same
service area, 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 reasonably demonstrates the need
for the number of proposed operating rooms in addition to the
rooms in its all of the licensed facilities identified in response to
10A NCAC 14C .2102(b)(2) in the third operating year of the
proposed project based on the following formula: {[(Number of
projected inpatient cases for all its the applicant's or related
entities' facilities, excluding trauma cases reported by Level I, II,
or III I or II trauma centers, cases reported by designated burn
intensive care units and cases performed in dedicated open heart
and C-section rooms, times 3.0 hours) plus (Number of projected
outpatient cases for all its the applicant's or related entities'
facilities times 1.5 hours)] divided by 1872 hours} minus the
total number of existing, existing and approved and proposed
operating rooms, rooms and operating rooms proposed in
another pending application, excluding one operating room for
Level I, II or III I or II trauma centers, one operating room for
facilities with designated burn intensive care units, and all
dedicated open heart and C-Section operating rooms in all of it's
the applicant's or related entities' licensed facilities in the service
area. A need is demonstrated if the difference is a positive
number greater than or equal to 0.50. The number of rooms
needed is determined as follows:
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1581
(1) in a service area which has more than 10
operating rooms and the positive difference is
0.5 or greater, the need is the next highest
whole number for fractions of 0.5 or greater
and the next lowest whole number for
fractions less than 0.5; except if the difference
is a negative number or a positive number less
than 0.5, the need is zero;
(2) in a service area which has six to 10 operating
rooms and the positive difference is 0.3 or
greater, the need is the next highest whole
number for fractions of 0.3 or greater and the
next lowest whole number for fractions less
than 0.3, except if the difference is a negative
number or a positive number less than 0.3, the
need is zero;
(3) in a service area which has five or fewer
operating rooms and the positive difference is
0.2 or greater, the need is the next highest
whole number for fractions of 0.2 or greater
and the next lowest whole number for
fractions less than 0.2; except if the difference
is a negative number or a positive number less
than 0.2, the need is zero;
(d) An applicant that has one or more existing or approved
dedicated C-section operating rooms and is proposing to develop
an additional dedicated C-section operating room in the same
facility shall demonstrate that an average of at least 365 C-sections
per room were performed in the facility's existing
dedicated C-section operating rooms in the previous 12 months
and are projected to be performed in the facility's existing,
approved and proposed dedicated C-section rooms during the
third year of operation following completion of the project.
(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
program shall provide documentation to show that each existing
ambulatory surgery program in the service area that performs
ambulatory surgery in the same specialty area as proposed in the
application is currently utilized an average of at least 1,872
hours per operating room per year, excluding dedicated open
heart and C-Section operating rooms. The hours utilized per
operating room shall be calculated as follows: [(Number of
projected inpatient cases, excluding open heart and C-sections
performed in dedicated rooms, times 3.0 hours) plus (Number of
projected outpatient cases times 1.5 hours)] divided by the
number of operating rooms, excluding dedicated open heart and
C-Section operating rooms.
(f) 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 reasonably demonstrate the need for the
conversion in the third operating year of the project based on the
following formula: [(Total number of projected outpatient cases
for all ambulatory surgery programs in the service area times 1.5
hours) divided by 1872 hours] minus the total number of
existing, approved and proposed outpatient or ambulatory
surgical operating rooms and shared operating rooms in the
service area. The need for the conversion is demonstrated if the
difference is a positive number greater than or equal to one, after
the number is rounded to the next highest number for fractions
of 0.50 or greater.
(g) The applicant shall document the assumptions and provide
data supporting the methodology used for each projection in this
Rule.
History Note: Authority G.S. 131E-177; 131E-183(b);
Eff. November 1, 1990;
Amended Eff. March 1, 1993;
Temporary Amendment Eff. September 1, 1993 for a period of
180 days or until the permanent rule becomes effective,
whichever is sooner;
Amended Eff. January 4, 1994;
Temporary Amendment Eff. January 1, 2002; July 1, 2001;
Amended Eff. August 1, 2002;
Temporary Amendment effective January 1, 2002 amends and
replaces the permanent rule effective August 1, 2002;
Amended Eff. April 1, 2003;
Temporary Amendment Eff. January 1, 2005;
Amended Eff. November 1, 2005;
Temporary Rule Eff. February 1, 2006;
Amended Eff. November 1, 2006;
Temporary Amendment Eff. February 1, 2008;
Amended Eff. November 1, 2008;
Temporary Amendment Eff. February 1, 2009.
SECTION .2700 - CRITERIA AND STANDARDS FOR
MAGNETIC RESONANCE IMAGING SCANNER
10A NCAC 14C .2701 DEFINITIONS
The following definitions 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
percent 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
percent 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
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1582
procedures are performed per hour and the
scanner is operated 40 hours per week, 52
weeks per year.
(4) "Dedicated breast MRI scanner" means an
MRI scanner that is configured to perform
only breast MRI procedures and is not capable
of performing other types of non-breast MRI
procedures.
(5) "Existing MRI scanner" means an MRI
scanner in operation prior to the beginning of
the review period.
(6) "Extremity MRI scanner" means an MRI
scanner that is utilized for the imaging of
extremities and is of open design with a field
of view no greater than 25 centimeters.
(7) "Fixed MRI scanner" means an MRI scanner
that is not a mobile MRI scanner.
(8) "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.
(9) "Magnetic resonance imaging scanner" (MRI
Scanner) is defined in G.S. 131E-176(14e).
(10) "Mobile MRI region" means either the eastern
part of the State which includes the counties in
Health Service Areas IV, V and VI (Eastern
Mobile MRI Region), or the western part of
the State which includes the counties in Health
Service Areas I, II, and III (Western Mobile
MRI Region). The counties in each Health
Service Area are identified in Appendix A of
the State Medical Facilities Plan.
(11) "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. campuses or locations.
(12) "MRI procedure" means a single discrete MRI
study of one patient.
(13) "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
for which the service area is a mobile MRI
region.
(14) "MRI study" means one or more scans relative
to a single diagnosis or symptom.
(15) "Multi-position MRI scanner" means an MRI
scanner as defined in the State Medical
Facilities Plan, pursuant to a special need
determination for a demonstration project.
(16) "Related entity" means the parent company of
the applicant, a subsidiary company of the
applicant (i.e., the applicant owns 50 percent
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).
(17) "Temporary MRI scanner" means an 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.
(18) "Weighted MRI procedures" means MRI
procedures which are adjusted to account for
the length of time to complete the procedure,
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.
(19) "Weighted breast MRI procedures" means
MRI procedures which are performed on a
dedicated breast MRI scanner and are adjusted
to account for the length of time to complete
the procedure, based on the following weights:
one diagnostic breast MRI procedure is valued
at 1.0 weighted MRI procedure (based on an
average of 60 minutes per procedure), one
MRI-guided breast needle localization MRI
procedure is valued at 1.1 weighted MRI
procedure (based on an average of 66 minutes
per procedure), and one MRI-guided breast
biopsy procedure is valued at 1.6 weighted
MRI procedures (based on an average of 96
minutes per procedure).
History Note: Authority G.S. 131E-177(1); 131E-183(b);
Temporary Adoption Eff. September 1, 1993 for a period of 180
days or until the permanent rule becomes effective, whichever is
sooner;
Eff. February 1, 1994;
Temporary Amendment Eff. January 1, 1999;
Temporary Amendment Eff. January 1, 1999 Expired on October
12, 1999;
Temporary Amendment Eff. January 1, 2000;
Temporary Amendment effective January 1, 2000 amends and
replaces a permanent rulemaking originally proposed to be
effective August 2000;
Temporary Amendment Eff. January 1, 2001;
Temporary Amendment effective January 1, 2001 amends and
replaces a permanent rulemaking originally proposed to be
effective April 1, 2001;
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23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1583
Temporary Amendment Eff. January 1, 2002;
Amended Eff. August 1, 2002;
Temporary Amendment effective January 1, 2002 amends and
replaces the permanent rule effective August 1, 2002;
Temporary Amendment Eff. January 1, 2003;
Amended Eff. August 1, 2004; April 1, 2003;
Temporary Amendment Eff. January 1, 2005;
Amended Eff. November 1, 2005;
Temporary Amendment Eff. February 1, 2006;
Amended Eff. November 1, 2006;
Temporary Amendment Eff. February 1, 2008;
Amended Eff. November 1, 2008;
Temporary Amendment Eff. February 1, 2009.
RULES REVIEW COMMISSION
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1584
This Section contains information for the meeting of the Rules Review Commission on Thursday, January 22, 2009 9:00 a.m.
at 1711 New Hope Church Road, RRC Commission Room, Raleigh, NC. Anyone wishing to submit written comment on any
rule before the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners.
Specific instructions and addresses may be obtained from the Rules Review Commission at 919-431-3100. Anyone wishing
to address the Commission should notify the RRC staff and the agency no later than 5:00 p.m. of the 2nd business day before
the meeting. Please refer to RRC rules codified in 26 NCAC 05.
RULES REVIEW COMMISSION MEMBERS
Appointed by Senate Appointed by House
Jim R. Funderburke - 1st Vice Chair Jennie J. Hayman - Chairman
David Twiddy - 2nd Vice Chair John B. Lewis
Keith O. Gregory Clarence E. Horton, Jr.
Jerry R. Crisp Daniel F. McLawhorn
Jeffrey P. Gray Curtis Venable
COMMISSION COUNSEL
Joe Deluca (919)431-3081
Bobby Bryan (919)431-3079
RULES REVIEW COMMISSION MEETING DATES
February 19, 2009 March 19, 2008
April 16, 2009 May 21, 2009
RULES REVIEW COMMISSION
January 22, 2009
MINUTES
The Rules Review Commission (RRC) met on Thursday, January 22, 2009, in the Commission Room at 1711 New Hope Church
Road, Raleigh, North Carolina. Commissioners present were: Jerry Crisp, Jim Funderburk, Jeff Gray, Keith Gregory, Clarence
Horton, John Lewis, David Twiddy and Curtis Venable.
Staff members present were: Joseph DeLuca and Bobby Bryan, Commission Counsel, and Tammara Chalmers, RRC Administrative
Assistant.
The following people were among those attending the meeting:
Catherine Blum DENR/Division of Marine Fisheries
Donald C. Warner NC Home Inspector Licensure Board
Danny Smith DENR/Division of Water Quality
Erin Gould NC Department of Labor
Nadine Pfeiffer DHHS/Division of Health Service Regulation
Drexdal Pratt DHHS/Division of Health Service Regulation
Nancy Pate Department of Environment and Natural Resources
Carolin Bakewell NC Board of Dental Examiners
Adriene Weaver DENR/Division of Water Quality
Andrea Borden DHHS/Division of Mental Health, Developmental Disabilities and Substance Abuse Services
Will Crumbly Office of State Budget and Management
Ed McLenaghan Office of State Budget and Management
Micki Lilly NC Social Work Certification and Licensure Board
Stephen Dirksen NC Board of Funeral Service
Andy Ellen NC Retail Merchants Association
Julia Lohman DOJ/Sheriffs' Training and Standards
Jeff Manning DENR/Division of Water Quality
Wayne Woodard DOJ/Criminal Justice Training and Standards
David McLeod NC Department of Agriculture and Consumer Services
RULES REVIEW COMMISSION
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1585
Lee Hoffman Department of Health and Human Services
Amanda Reeder DHHS/Division of Mental Health, Developmental Disabilities and Substance Abuse Services
Bonnie Bendell DENR/Division of Coastal Management
Mike Abraczinskas DENR/Division of Air Quality
Frank Sheffield Ward and Smith, P.A.
APPROVAL OF MINUTES
The meeting was called to order at 9:05 a.m. with Mr. Funderburk presiding. He reminded the Commission members that they have a
duty to avoid conflicts of interest and the appearances of conflicts as required by NCGS 138A-15(e). Vice Chairman Funderburk
asked for any discussion, comments, or corrections concerning the minutes of the December 18, 2008 meeting. There were none and
the minutes were approved as distributed.
FOLLOW-UP MATTERS
10A NCAC 13P .0102, .0202, .0205, .0510 – Medical Care Commission. The Commission approved the rewritten rules submitted by
the agency. The Commission has received at least 10 letters of objection to Rule .0102 so this rule is subject to legislative review.
12 NCAC 10B .0103 – Sheriff's Education and Training Standards Commission. The Commission approved the rule submitted by the
agency. Commissioner Venable voted against the motion to approve the rule.
12 NCAC 10B .0202 – Sheriff's Education and Training Standards Commission. No action was taken by the Commission at the
agency's request. Review of this rule is delayed until the next meeting.
12 NCAC 10B .0703, .0911, .0912, .0919, .0920 – Sheriff's Education and Training Standards Commission. The Commission
approved the rewritten rules submitted by the agency.
13 NCAC 13 .0413, .0420 – Department of Labor. The Commission approved the rewritten rules submitted by the agency.
15A NCAC 02B .0602, .0604, .0606, .0607, .0608, .0609 – Environmental Management Commission. The Commission approved the
rewritten rules submitted by the agency.
15A NCAC 02D .1110 – Environmental Management Commission. This rule was approved at the December 18, 2008 meeting. The
Commission rescinded last month's approval of this rule. An identical rule and amendment was approved at the May RRC meeting
and was already in the North Carolina Administrative Code (NCAC). The rule approved in December was unchanged from the rule
approved in May and currently in the NCAC. The most recent version will be returned to the agency.
15A NCAC 02D .1205, .1212 – Environmental Management Commission. The Commission heard from Frank Sheffield who
represented WASTEC and Mike Abraczinskas who spoke for the Division of Air Quality. No action was taken.
15A NCAC 18A .2606 – Commission for Public Health. This rule was withdrawn by the agency.
15A NCAC 18A .3606 – Commission for Public Health. The agency decided not to change the rule to satisfy the Commission's
objection and asked that the rule be returned. The rule will remain in the NCAC as it currently is since the objection applied to the
amendment and not to existing language. The rule will be returned to the agency.
21 NCAC 14H .0105 – Board of Cosmetic Art Examiners. The Commission objected to the rewritten rule based on lack of authority
or ambiguity. It is unclear in (e) that only willful violations of the board's rules, including its sanitation rules, can be used to revoke or
suspend a letter of approval or permit. The rule is a violation of G.S. 88B-24(8). There is no authority for the board to attempt to
revoke or suspend a license for less than a willful violation.
21 NCAC 34A .0124, .0126 – Board of Funeral Service. The Commission approved the rewritten rules submitted by the agency.
21 NCAC 34B .0211, .0213, .0310 – Board of Funeral Service. The Commission approved the rewritten rules submitted by the
agency.
21 NCAC 34C .0305 – Board of Funeral Service. The Commission approved the rewritten rule submitted by the agency.
21 NCAC 34D .0201, .0303 – Board of Funeral Service. The Commission approved the rewritten rules submitted by the agency.
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21 NCAC 34D .0203 – Board of Funeral Service. This rule was withdrawn by the agency.
21 NCAC 63 .0302 – Social Work Certification and Licensure Board. The Commission approved the rewritten rule submitted by the
agency.
LOG OF FILINGS
Vice Chairman Funderburk presided over the review of the log of permanent rules.
All permanent rules were approved unanimously with the following exceptions:
02 NCAC 38 .0203, .0701: Board of Agriculture – The Commission objected to this rule based on ambiguity. It is unclear what the
meaning of "significantly" is in (1)(f)(iii) on page 2 line 11. It is unclear what the standards are that will be used to determine whether
the changes in potential exposures are significant.
10A NCAC 27A .0401, .0402, .0403, .0404: HHS-Mental Health – These rules were withdrawn by the agency.
10A NCAC 27G .0504: HHS-Mental Health, Developmental Disabilities, and Substance Abuse Services – The Commission objected
to this rule based on lack of authority. There is no authority cited for the provision in (a), (d) and anywhere else in this rule requiring
private providers to establish a "Client Rights Assurance Committee."
Commissioner Venable made the motion to object to the above rule and in answer to a question from Commissioner Gray added to the
motion to approve the remainder of the Mental Health rules. Commissioners Crisp, Gray, Gregory, Lewis, Twiddy, and Venable
voted in favor of the motion. Commissioner Horton voted against the motion.
Prior to the review of the permanent rules from the Private Protective Services Board, Commissioner Gray recused himself and did not
participate in any discussion or vote concerning these rules because he is under contract with the Private Protective Services Board to
teach.
12 NCAC 07D .0402: Private Protective Services Board – The Commission objected to this rule based on lack of statutory authority
and ambiguity. It is not clear what standards the Board will use in approving a school specializing in counterintelligence. While the
Board has authority to approve schools, it must adopt the standards by rule. This objection applies to existing language in the rule.
12 NCAC 07D .0501: Private Protective Services Board – The Commission objected to this rule based on lack of statutory authority
and ambiguity. In (a)(2), it is not clear what standards the Board will use in approving a polygraph school, and there is no authority
cited to set the standards outside rulemaking. This objection applies to existing language in the rule.
12 NCAC 09B .0301: Criminal Justice Education and Training Standards Commission – This rule was withdrawn by the agency and
re-filed for the next month's meeting.
12 NCAC 09H .0101, .0102, .0103, .0104, .0105: Criminal Justice Education and Training Standards Commission – These rules were
withdrawn by the agency and re-filed for the next month's meeting.
15A NCAC 03H .0102, .0103: Marine Fisheries Commission – These rules were withdrawn by the agency.
15A NCAC 03I .0101: Marine Fisheries Commission – The Commission objected to this rule based on lack of statutory authority and
ambiguity. In (5)(i), it is not clear what standards the Division will use in approving paper forms or electronic data files. It is also not
clear what other information is required by the Division. There is no authority cited to set requirements other than by rulemaking.
15A NCAC 03I .0104: Marine Fisheries Commission – The Commission objected to this rule based on ambiguity. In (b)(1), it is not
clear what diseases are "diseases of concern." In the last sentence in (b), it is not clear what standards will be used to determine if an
applicant must have additional analyses performed. In (c), it is not clear what standards the Fisheries Director will use in determining
whether to require the listed conditions for a permit.
15A NCAC 03J .502: Marine Fisheries Commission – The Commission objected to this rule based on ambiguity. In (e)(6), it is not
clear what standards the Fisheries Director will use to determine if a proposed pound net set is in the public interest.
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15A NCAC 07J .0701: Coastal Resource Commission – The Commission objected to this rule based on lack of authority. In (a) this
rule sets out certain legal positions that are outside the agency's rulemaking authority or are unnecessary:
1. The first sentence states that a person denied a permit may seek a variance from the normal permit conditions. This
is acceptable for the agency to specify.
2. However at the end of that first sentence and further in this paragraph and in (c)(6) the agency sets out the proviso
that if the applicant wishes to do that, he cannot either then or later file a contested case proceeding over the initial
agency decision. Any dispute over the agency's initial decision must be settled prior to seeking a variance appears to
be the agency's position. This may or may not be a correct statement of the consequences of the APA and other NC
law, but it is not within the agency's authority to attempt to write that law. To the extent that it is a correct statement
of the law, then this portion of the rule is unnecessary.
While the agency is entitled to set certain conditions in seeking a variance, the agency may not require an applicant to give up an
avenue of due process that might be granted by the APA in order to seek some other relief that might be available and to which the
applicant is entitled. The last sentence of (a) sets certain conditions that must be met prior to seeking a variance and these conditions
are within the agency's authority.
15A NCAC 07J .0703: Coastal Resources Commission – The Commission approved this rule contingent on receiving a requested
technical change. The technical change has not yet been made. The agency wants their Commission to review the change first. The
rule will be reviewed again at the February RRC meeting.
TEMPORARY RULES
Vice Chairman Funderburk presided over the review of the log of temporary rules.
All temporary rules were unanimously approved by the Commission.
COMMISSION PROCEDURES AND OTHER BUSINESS
The meeting adjourned at 11:00 a.m.
The next scheduled meeting of the Commission is Thursday, February 19, 2009 at 9:00 a.m.
Respectfully Submitted,
Tammara Chalmers
LIST OF APPROVED PERMANENT RULES
January 22, 2009 Meeting
AGRICULTURE, BOARD OF
Type Approval of Weighing and Measuring Devices 02 NCAC 38 .0203
Retail Motor Fuel Dispensers/Half-Pricing 02 NCAC 38 .0601
Noxious Weeds 02 NCAC 48A .1702
Regulated Areas 02 NCAC 48A .1703
MEDICAL CARE COMMISSION
Definitions 10A NCAC 13P .0102
Model EMS Systems 10A NCAC 13P .0202
EMS Provider License Conditions 10A NCAC 13P .0205
Renewal of Credentials for Level I and Level II EMS Instr... 10A NCAC 13P .0510
MENTAL HEALTH, COMMISSION FOR
Staff Definitions 10A NCAC 27G .0104
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HHS - MENTAL HEALTH
Operations During Licensed Period 10A NCAC 27G .0404
HOME INSPECTOR LICENSURE BOARD
Purpose and Scope 11 NCAC 08 .1103
PRIVATE PROTECTIVE SERVICES BOARD
Experience Requirements/Security Guard and Patrol License 12 NCAC 07D .0301
Experience Requirements for Guard Dog Service License 12 NCAC 07D .0302
Experience Requirements for Private Investigator License 12 NCAC 07D .0401
Experience Requirements for Courier License 12 NCAC 07D .1201
SHERIFFS EDUCATION AND TRAINING STANDARDS COMMISSION
Definitions 12 NCAC 10B .0103
Administration of Detention Officer Certification Course 12 NCAC 10B .0703
Suspension: Revocation: Denial of Detention Officer Instr... 12 NCAC 10B .0911
Period/Suspension: Revocation: or Denial of Detention Off... 12 NCAC 10B .0912
Suspension: Revocation: Denial of Telecommunicator Instru... 12 NCAC 10B .0919
Period/Suspension: Revocation: or Denial of Telecommunica... 12 NCAC 10B .0920
LABOR, DEPARTMENT OF
Clearance 13 NCAC 13 .0413
Fire Mechanism Controls 13 NCAC 13 .0420
ENVIRONMENTAL MANAGEMENT COMMISSION
Site Specific Water Quality Management Plan for the Goose... 15A NCAC 02B .0602
Site Specific Water Quality Management Plan for the Goose... 15A NCAC 02B .0604
Site Specific Water Quality Management Plan for the Goose... 15A NCAC 02B .0606
Site Specific Water Quality Management Plan for the Goose... 15A NCAC 02B .0607
Site Specific Water Quality Management Plan for the Goose... 15A NCAC 02B .0608
Site Specific Water Quality Management Plan for the Goose... 15A NCAC 02B .0609
MARINE FISHERIES COMMISSION
Gill Nets, Seines, Identification, Restrictions 15A NCAC 03J .0103
Trawl Nets 15A NCAC 03J .0104
Pound Net Sets 15A NCAC 03J .0107
Hook-and-Line 15A NCAC 03J .0306
Definitions and Standards for Pound Nets and Pound Net Sets 15A NCAC 03J .0501
Pound Net Set Permit Renewal 15A NCAC 03J .0503
Pound Net Set Permit Transfer 15A NCAC 03J .0504
Pound Net Set Permit Conditions 15A NCAC 03J .0505
Prohibited Nets, Mesh Sizes and Areas 15A NCAC 03L .0103
Unlawful to Use or Take 15A NCAC 03L .0104
Recreational Shrimp Limits 15A NCAC 03L .0105
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American Lobster (Northern Lobster) 15A NCAC 03L .0301
Red Drum 15A NCAC 03M .0501
Authorized Gear 15A NCAC 03O .0302
Procedures and Requirements to Obtain Permits 15A NCAC 03O .0501
Permit Conditions, General 15A NCAC 03O .0502
Permit Conditions; Specific 15A NCAC 03O .0503
Descriptive Boundaries for Coastal-Joint-Inland Waters 15A NCAC 03Q .0202
Attended Gill Net Areas 15A NCAC 03R .0112
Pound Net Set Prohibited Areas 15A NCAC 03R .0113
COASTAL RESOURCES COMMISSION
Purpose 15A NCAC 07H .1401
Approval Procedures 15A NCAC 07H .1402
General Conditions 15A NCAC 07H .1404
Specific Conditions 15A NCAC 07H .1405
Purpose 15A NCAC 07H .2101
Approval Procedures 15A NCAC 07H .2102
General Conditions 15A NCAC 07H .2104
Specific Conditions 15A NCAC 07H .2105
Purpose 15A NCAC 07H .2401
Approval Procedures 15A NCAC 07H .2402
General Conditions 15A NCAC 07H .2404
Specific Conditions 15A NCAC 07H .2405
Declaration of General Policy 15A NCAC 07M .0301
Definitions 15A NCAC 07M .0302
Standards for Public Access 15A NCAC 07M .0303
Local Government and State Involvement in Access 15A NCAC 07M .0306
Eligibility, Selection Criteria and Matching Requirements 15A NCAC 07M .0307
CHIROPRACTIC EXAMINERS, BOARD OF
Examination 21 NCAC 10 .0203
DENTAL EXAMINERS, BOARD OF
Procedure for Evaluation or Inspection 21 NCAC 16Q .0204
Temporary Approval Prior to Site Inspection 21 NCAC 16Q .0303
Temporary Approval Prior to Site Inspection 21 NCAC 16Q .0403
FUNERAL SERVICE, BOARD OF
Solicitation 21 NCAC 34A .0124
Complaints: Preliminary Determination 21 NCAC 34A .0126
National Board Certificate 21 NCAC 34B .0211
Expiration of Text Scores 21 NCAC 34B .0213
Practice of Funeral Service or Funeral Directing Not as a... 21 NCAC 34B .0310
Monthly Reports 21 NCAC 34C .0305
Preneed Funeral Establishment License 21 NCAC 34D .0201
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Certificate of Performance 21 NCAC 34D .0303
SOCIAL WORK CERTIFICATION AND LICENSURE BOARD
Reporting of Scores 21 NCAC 63 .0302
LIST OF APPROVED TEMPORARY RULES
January 22, 2009 Meeting
HEALTH SERVICE REGULATION, DIVISION OF
Performance Standards 10A NCAC 14C .1403
Information Required of Applicant 10A NCAC 14C .1902
Performance Standards 10A NCAC 14C .1903
Support Services 10A NCAC 14C .1904
Staffing and Staff Training 10A NCAC 14C .1905
Information Required of Applicant 10A NCAC 14C .2002
Performance Standards 10A NCAC 14C .2103
Definitions 10A NCAC 14C .2701
CONTESTED CASE DECISIONS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1591
This Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index to
all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of
Administrative Hearings, (919) 431-3000. Also, the Contested Case Decisions are available on the Internet at
http://www.ncoah.com/hearings.
OFFICE OF ADMINISTRATIVE HEARINGS
Chief Administrative Law Judge
JULIAN MANN, III
Senior Administrative Law Judge
FRED G. MORRISON JR.
ADMINISTRATIVE LAW JUDGES
Beecher R. Gray Randall May
Selina Brooks A. B. Elkins II
Melissa Owens Lassiter Joe Webster
Don Overby
CASE DATE OF PUBLISHED DECISION
AGENCY NUMBER ALJ DECISION REGISTER CITATION
ALCOHOL BEVERAGE CONTROL COMMISSION
Partnership T/A C Js Lounge v. ABC Commission 07 ABC 0201 Overby 03/11/08
Michael Daniel Clair v. T/A Par 3 Bistro v. ABC Commission 07 ABC 1289 Lassiter 10/07/08
ABC Commission v. Rainbow Enterprises, Inc T/A Club N Motion 07 ABC 1532 Gray 06/20/08 23:05 NCR 489
Benita, Inc., T/A Pantana Bob's v. ABC Commission 07 ABC 1584 Overby 04/21/08 23:01 NCR 141
Original Grad, Inc/ T/A Graduate Food and Pub 07 ABC 1648 Joseph 02/25/08
N.C. Alcoholic Beverage Control Commission v. Feest Inc. 07 ABC 2135 Gray 09/12/08
T/A Spankys Sports Bar and Grill
Don Mariachi Ventures, T/A EL Mariachi Gordo 07 ABC 2155 Webster 11/05/08
N.C. Alcoholic Beverage Control Commission v. Jenny S. Chanthalacksa 08 ABC 0097 May 09/03/08
T/A JB Food Mart
N.C. Alcoholic Beverage Control Commission v. Jenny S. Chanthalacksa 08 ABC 0351 May 09/03/08
T/A JB Food Mart
AM Enterprises of Fayetteville, Inc., T/A Izzy's Sports Bar v. ABC 08 ABC 0371 Lassiter 06/13/08
Commission
Bhavesh Corporation, T/A K&B Foomart v. ABC Commission 08 ABC 0508 Overby 05/19/08
Downtown Event Center, Inc. T/A Downtown Event Center v. ABC 08 ABC 0937 May 09/16/08
Commission
CRIME VICTIMS COMPENSATION
Patricia Ginyard v. Crime Victim Compensation Commission 06 CPS 1720 Gray 05/27/08
Carrie R. McDougal v. Victims Compensation Services Division 07 CPS 1970 Elkins 05/23/08
Hillary Holt v. Crime Victims Compensation Commission 07 CPS 2292 Brooks 09/18/08
Taereka S Johnson v. NC Crime Victims Compensation Commission 08 CPS 0402 Morrison 08/08/08
Rich's Towing and Service Inc. v. NC Department of Crime Control 08 CPS 0698 May 08/13/08
And Public Safety, Division of State Highway Patrol, Motor Carrier
Enforcement Section
Steel Supply and Erection Co., Department of Crime Control and Public 08 CPS 0777 Overby 05/29/08
Safety, Division of State Highway Patrol and Department of Revenue
ATS Specialized, Inc, v. Dept. of Crime Control and Public Safety, Div. 08 CPS 0864 May 09/11/08
Of State Highway Patrol, Motor Carrier Enforcement Section
Willie Trucking, Inc d/b/a Allstate Transport Co v. Dept. of Crime Control08 CPS 0897 May 09/11/08
& Public Safety, Division of State Highway Patrol, Motor Carrier
Enforcement Section
Randy S. Griffin v. NC Crime Victims Compensation Commission 08 CPS 0995 May 09/11/08
Kenneth Lee Moore v. Dept. of Crime Control and Public Safety 08 CPS 1093 Webster 10/27/08
Interstate Crushing Inc. v. NC Dept. of Crime Control and Public 08 CPS 1086 Overby 09/29/08
Safety, Division of State Highway Patrol, Motor Carrier
Enforcement Section
CONTESTED CASE DECISIONS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1592
Sterett Equipment Company LLC v. N.C. Dept. of Crime Control 08 CPS 1206 Overby 09/29/08
And Public Safety, Division of State Highway Patrol, Motor
Carrier Enforcement Section
Bertrand E. Dupuis d/b/a New England Heavy Hauling v. N.C. 08 CPS 1207 Overby 09/29/08
Department of Crime Control and Public Safety, Division of
State Highway Patrol, Motor Carrier Enforcement Section
Bulldog Erectors, Inc v. N.C. Department of Crime Control and 08 CPS 1208 Overby 09/29/08
Public Safety, Division of State Highway Patrol, Motor
Carrier Enforcement Section
Continental Machinery Movers Inc. v. N.C. Department of Crime 08 CPS 1209 Overby 09/29/08
Control and Public Safety, Division of State Highway Patrol,
Motor Carrier Enforcement Section
Michael Alan Moore v. Crime Victims Compensation Commission 08 CPS 1478 Lassiter 09/08/08
TNT of York County, Inc., Tony McMillan v. State Highway Patrol 08 CPS 1508 Joseph 12/11/08
Motor Carrier Enforcement
SOOF Trucking, Ray Charles Solomon v. Secretary of Crime Control 08 CPS 1526 Overby 09/09/08
And Public Safety
Dickinson Hauling and Grading., Inc, Tony E. Dickinson, 3134016-9 v. 08 CPS 1800 Brooks 12/15/08
Dept. of Crime Control and Public Safety, Division of State Highway
Patrol
Dickinson Hauling and Grading., Inc, Tony E. Dickinson, 3134016-9 v. 08 CPS 1801 Brooks 12/15/08
Dept. of Crime Control and Public Safety, Division of State Highway
Patrol
Dickinson Hauling and Grading., Inc, Tony E. Dickinson, 3134016-9 v. 08 CPS 1802 Brooks 12/15/08
Dept. of Crime Control and Public Safety, Division of State Highway
Patrol
Kayonna Goodwin Pollard c/o Chad Lopez Pollard v. Crime Control & 08 CPS 1850 Gray 10/24/08
Victim Compensation Services
John D. Lane v. Diversified Drilling Corp v. Office of Admin Svc, Sec. 08 CPS 2049 Joseph 11/06/08
of Crime Control and Public Safety
Richard Pratt v. Dept. of Crime Control and Public Safety 08 CPS 2417 Lassiter 01/15/08
Robert D. Reinhold v. Dept. of Transportation, Division of Motor 08 CPS 2501 Gray 12/10/08
Vehicles
A list of Child Support Decisions may be obtained by accessing the OAH Website: http://www.ncoah.com/hearings/decisions/
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Gloria McNair Jean's Jewels v. Div. of Child Development, DHHS 06 DHR 0633 Lassiter 07/11/08
Gloria McNair Jean's Jewels v. Div. of Child Development, DHHS 06 DHR 1350 Lassiter 07/11/08
Character Builders, Inc., Clavon Leonard v. DMA, Developmental 07 DHR 0124 Elkins 08/07/08
Disabilities and Substance Abuse Services
Character Builders, Inc., Clavon Leonard v. DMA, Developmental 07 DHR 0125 Elkins 08/07/08
Disabilities and Substance Abuse Services
Arthur Burch and Margaret and Burch v. Department of Health and 07 DHR 0242 Brooks 04/30/08
Human Services
The "M" Company LLC, v. DHHS, DMA, Program Integrity 07 DHR 0429 Webster 05/29/08
Brenda F. Ervin v. DHHS, DFS, Health Care Personnel Registry 07 DHR 0493 Gray 12/08/08
Judy E. Pettus v. Office of Chief Medical Examiner, Thomas B. Clark, 07 DHR 0535 Webster 05/05/08
Iii, Md, Pathologist
Clorie Bivens Owen on Behalf of Williams Baxter Bivens – Estate of 07 DHR 0701 Elkins 12/08/08
Leroy A. Bivens v. DHHS
Alterra Clare Bridge of Asheville v. DHHS, DFS, Adult Care 07 DHR 0914 Gray 06/06/08
Licensure Section
Shirley Brooks Dial v. Health Care Personnel Registry 07 DHR 0931 Webster 02/27/08
Midtown Food Mart #2, Kerab Giebrehiwot, Mehreteab Wooldeghebibel 07 DHR 1044 Webster 04/25/08
and Fesseha Zeru
Midtown Food Mart III, Chenet Haileslassi and Fesseha Zeru v. DHHS 07 DHR 1045 Webster 04/28/08
Kelly Schofield MD, Clinical Director, Youth Quest, Inc. v. DHHS, DFS 07 DHR 1064 Joseph 10/17/08
Mental Health Licensure and Certification
Carolyn E. Reed v. DHHS, Division of Social Services Program Integrity 07 DHR 1214 Webster 07/21/08
AFDC/Work First
Mrs. Elizabeth Futrell v. Value Options 07 DHR 1331 Lassiter 06/09/08
Cornell Jones v. DHHS, Division of Health Services Regulation 07 DHR 1399 Joseph 04/22/08
Dianetta Foye v. Division of Child Development, DHHS, Services 07 DHR 1440 Joseph 05/07/08
Rufus Patrick Devers v. DHHS, Division of Health Service Regulation 07 DHR 1442 Joseph 05/29/08
Health Care Personnel Registry
Ray Dukes, Bright Future Learning Center v. DHHS, Division of Public 07 DHR 1473 Joseph 04/08/08
Health, Child and Adult Care Food Program
William Manning c/o Thyllis Smith, A Touch From the Heart Staff v. 07 DHR 1060 Webster 10/14/08
NC Department of Health and Human Services, Division of
Medical Assistance
CONTESTED CASE DECISIONS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1593
Hospice of the Piedmont, Inc., v. DHHS, Division of Health Service 07 DHR 1617 Elkins 05/21/08
Regulation, Licensure and Certification Section and DHHS,
Division of Health Service Regulation, CON Section
Janice Addison v. Value Options 07 DHR 1618 Webster 05/16/08
Donna Hicks Crocker v. DHHS/DMA 07 DHR 1629 Joseph 08/01/08
Rebecca Dehart v. DHHS, Division of Health Service Regulation 07 DHR 1650 Elkins 05/21/08
Health Care Personnel Registry Section
Ellen Brown v. DHHS, Division of Health Service Regulation, Health 07 DHR 1651 Elkins 05/21/08
Care Personnel Registry Section
Life Solutions of Lumberton, NC, LLC d/b/a Timberwood and 07 DHR 1758 Joseph 12/04/08
Bridgecrest
Life Solutions of Lumberton, NC, LLC d/b/a Timberwood and 07 DHR 1759 Joseph 12/04/08
Bridgecrest
Joann Lennon v. Value Options Medicaid 07 DHR 1770 Webster 05/16/08
Angeline Currie v. DHHS 07 DHR 1986 Elkins 06/04/08
Tameala Jones v. OAH 07 DHR 1993 Webster 05/16/08
Dianetta Foye v. Division of Child Development, DHHS, Services 07 DHR 2020 Joseph 05/07/08
Lashauna Reid v. CCMHC (PFCS-Service Provider) 07 DHR 2039 Elkins 08/05/08
Presbyterian Diagnostic Center at Cabarrus LLC v. N.C. Department 07 DHR 2043 Lassiter 08/18/08 23:16 NCR 1600
of Health and Human Services, Division of Health Service
Regulation and Southern Piedmont Imaging, LLC
Southern Piedmont Imaging, LLC v. N.C. Department of Health 07 DHR 2045 Lassiter 08/18/08 23:16 NCR 1600
and Human Services, Division of Health Service Regulation and
Presbyterian Diagnostic Center at Cabarrus, LLC
Family & Youth Services, Inc. Angela Ford, President v. DHHS, 07 DHR 2057 Webster 05/16/08
Division of Medical Assistance Provider Services
Yolanda Jones v. DHHS, Adult Licensure Section 07 DHR 2081 Webster 05/16/08
Tianna Troy Legal guardian Mother Traci Lookadoo v. Value Option 07 DHR 2087 Elkins 05/23/08
Gary Carlton, Sr., v. DHHS 07 DHR 2099 Brooks 07/10/08
Alexis Ford/Linda M McLauglin v. DHHS 07 DHR 2111 Elkins 06/04/08
Roger Houston v. DHHS, Div. of Health Service Regulation 07 DHR 2176 Gray 07/08/08
Dorothy L. Davis v. OAH 07 DHR 2179 May 07/02/08
Kevin McMillian/Linda M McLaughlin v. DHHS 07 DHR 2239 Elkins 06/04/08
Maurisha Bethea/Linda McLaughlin v. DHHS 07 DHR 2240 Elkins 06/04/08
Manu Gaur v. DHHS 07 DHR 2275 Lassiter 10/01/08 23:16 NCR 1654
Gladys Cherry v. NC Department of Health and Human Services 07 DHR 2288 Webster 10/10/08
Anna Fields v. Value Options 07 DHR 2326 Joseph 06/02/08
Larry Hopper v. DHHS 07 DHR 2356 May 06/20/08
Shelby Davis v. DHHS 08 DHR 0014 Lassiter 05/09/08
Hellon P. Johnson v. DHHS 08 DHR 0020 May 07/03/08
Lenora King v. DHHS 08 DHR 0034 Joseph 05/01/08
Forest Mewborn v. Health Care Personnel Registry 08 DHR 0043 Elkins 05/23/08
Wilma Jackson v. Value Options 08 DHR 0082 Joseph 06/02/08
Carmelita Wiggins v. Value Options 08 DHR 0198 Webster 05/16/08
Blue Ridge Healthcare Surgery Center, Morganton LLC and Grace 08 DHR 0204 Brooks 09/18/08
Hospital, Inc, v. DHHS, DHSR, CON Section v. Dr. Mushtaq
Bukhari, Dr. Edwin Holler, Dr. Suneel Mohammed, Carolina
Digestive Care, PLLC, and Gastroentoerology Specialists
Murphy's Outreach Community Developmental Services, Inc, d/b/a 08 DHR 0220 Joseph 07/22/08
Outreach Home Health
Lisa Helms v. DHHS 08 DHR 0255 Overby 06/17/08
Pearlene Johnson Ivery v. DMA, Third Party Recovery (Medicaid) 08 DHR 0286 Brooks 07/07/08
Darryl A. Edwards v. DHHS 08 DHR 0320 Gray 11/05/08
Mamauie Aytch v. DHHS 08 DHR 0325 Elkins 05/23/08
Brenda McGilvary v. DHHS, Division of Social Services 08 DHR 0384 Webster 08/05/08
Fannie M. Wilson v. OAH 08 DHR 0393 Webster 06/17/08
Angela D Seabrooks/The Jabez House LLC v. DHHS/Division of Mental 08 DHR 0403 Joseph 06/09/08
Health, Developmental and Substance Abuse Services, The Guilford
Angela D. Seabrooks/The Jabez House LLC v. NC Department of 08 DHR 0403 Joseph 09/03/08
Health and Human Services, Division of Mental Health,
Developmental Disabilities and Substance Abuse Services
and The Guilford Center Center
William McCray Pretty v. DHHS, Division of Facility Services 08 DHR 0411 Webster 06/12/08
Focus Health Services, Inc. via Annette Johnson, Owner Operator v. 08 DHR 0442 Gray 06/12/08
North Carolina Department of Health and Human Services and
Albemarle Mental Health Center for Developmental
Disabilities and Substance Abuse Services
Judith E. Torres v. DHHS, DHSR 08 DHR 0488 Morrison 10/07/08
Earline Ross (Quentin Galloway) v. DHHS (Medicaid) 08 DHR 0549 May 06/09/08
Frances Milligan v. DHHS 08 DHR 0566 May 06/19/08
Betty Williams v. DHHS 08 DHR 0570 Joseph 06/02/08
Brandon McMahon v. DHHS 08 DHR 0572 Webster 11/14/08
Susan Nelson v. Medicaid 08 DHR 0573 May 06/09/08
CONTESTED CASE DECISIONS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1594
Brent Morris Per Dedrea Moors (Mother) v. Priscilla Valet, DMA 08 DHR 0585 May 06/09/08
Brenda M. Finney v. Medicaid 08 DHR 0586 Joseph 06/09/08
Allred & Allred Day Care Center, Inc. v. N.C. Department of 08 DHR 0617 May 06/04/08
Health and Human Services, Division of Public Health, Child
And Adult Care Food Program
Lakeva Robinson v. DMA/Value Options 08 DHR 0625 May 05/28/08
Ronald Lee Young v. N.C. Department of Health and Human 08 DHR 0631 Joseph 07/21/08
Services
Steven Chestnut v. DHHS, Health Care Personnel Registry 08 DHR 0652 May 11/19/08
Tina Miller v. OAH, DHHS 08 DHR 0661 Lassiter 06/10/08
Doris Harris v. Division of Child Development 08 DHR 0710 May 07/02/08
Michelle D. Mills v. DHHS, Division of Health Service Regulation 08 DHR 0712 Joseph 06/09/08
Trena Ellis v. DHHS 08 DHR 0730 Lassiter 07/03/08
Faith Davis v. Pride in North Carolina Value Options 08 DHR 0746 Overby 05/28/08
Evonne Neal v. Medicaid 08 DHR 0748 May 06/20/08
Maria Dejesus Ruiz La Vaca Ramona v. N.C. Department of 08 DHR 0760 Overby 07/24/08
Health and Human Services
Ray C. Price v. DHHS, Office of the Controller 08 DHR 0767 Brooks 07/07/08
Miland Hanna, Lamia Hanna and Charlotte Fast Mart, v. DHHS 08 DHR 0778 Brooks 08/28/08
Div. of Public Health
Cheryl I Rice v. DHHS 08 DHR 0793 Overby 07/10/08
Destiny A Taylor v. Division of Child Development 08 DHR 0794 Gray 07/21/08
Shawanda Rayner v. Cherry Hospital 08 DHR 0797 Webster 10/10/08
Mary Ada Mills, Mary M. Mills MSA FCH v. Adult Care Licensure 08 DHR 0808 May 08/26/08
Total Renal Care of North Carolina, LLC d/b/a TRC-Lelan v. DHHS 08 DHR 0818 Webster 12/23/08 23:16 NCR 1670
Div. of Health Service Center Regulation, CON Section and Bio-
Medical Applications of NC, Inc. d/b/a Fresenius Medical Care
Of Brunswick County
Lula Bowden v. OAH 08 DHR 0852 May 06/20/08
Donovan Harris v. Value Options 08 DHR 0894 May 06/19/08
Gabrielle Lloyd v. DHHS, Division of Health Service Regulation 08 DHR 0905 May 09/22/08
Janice Chavis v. DHHS 08 DHR 0923 Lassiter 05/19/08
Frankie Nicole Carter v. DHHS, Division of Health Service Regulation 08 DHR 0929 Brooks 06/19/08
Christine Maria Plyer v. Medicaid Reimbursement 08 DHR 0949 Mann 06/18/08
Margaret Mubanga v. NC Department of Health and Human Services 08 DHR 0961 Gray 08/25/08
Evangeline Ingram v. Value Options 08 DHR 0997 Gray 06/10/08
Marcia Veronica Harris v. Department of Health and Human 08 DHR 0169 Lassiter 08/11/08
Services, Division of Health Service Regulation
Maureen Jordan parent of Destinne Jordan v. Value Options 08 DHR 1005 Gray 06/19/08
Triangle Alternative Inc. Dorothy George v. Office of 08 DHR 1012 May 07/21/08
Administrative Hearings
Terrie P Hill dba Positive Care MHL 041-595 2203 Wanda Drive v. 08 DHR 1015 Lassiter 09/12/08
N.C. Department of Health and Human Services, Division of
Health Service Regulation, Mental Health Licensure and Certification
Section
Terrie P Hill dba Positive Care II MHL 041-633 3406 Fern Place v. 08 DHR 1016 Lassiter 09/12/08
NC Department of Health and Human Services, Division of
Health Service Regulation, Mental Health Licensure and
Certification Section
Terrie P Hill dba Positive Care II MHL 041-765 3406 Fern Place v. 08 DHR 1017 Lassiter 09/12/08
NC Department of Health and Human Services, Division of
Health Service Regulation, Mental Health Licensure and Certification
Section
Mario Jackson v. DHHS 08 DHR 1024 Overby 06/19/08
Adam L Powell v. NC Department of Health and Human Services 08 DHR 1030 Lassiter 09/05/08
Edwin F Clavijo, El Exito v. NC Department of Health and Human 08 DHR 1034 Lassiter 09/15/08
Services, Division of Public Health, Nutrition Services Branch
Linda F. Ellison v. NC Department of Health and Human 08 DHR 1035 Joseph 07/09/08
Services and or EDS
Doris Smith v. Health Care Personnel Registry 08 DHR 1238 Brooks 08/08/08
Latrish T. Perry v. Department of Health and Human Services 08 DHR 1023 Webster 08/29/08
Martha Washington Harper v. DSS 08 DHR 1041 Brooks 06/23/08
Martha McDonald v. DHHS, Div. of Health Service Regulation, Health 08 DHR 1052 May 12/04/08
Care Personnel Registry
Mary K. Tulay v. DHHS 08 DHR 1055 Joseph 07/09/08
Gwendolyn F. Gulley v. NC Department of Health and Human 08 DHR 1062 Overby 09/09/08
Services, Division of Health Service Regulation, Adult Care
Licensure Section
Rhonda Jones v. Value Options 08 DHR 1064 Webster 07/18/08
One Love Developmental Services v. Division of Health Service 08 DHR 1068 Lassiter 07/25/08
Regulation, Department of Health and Human Services
Jona Turner v. Office of Administrative Hearings 08 DHR 1092 Webster 07/18/08
Tonia Chatman Davis v. N.C. Department of Health and Human 08 DHR 1141 Lassiter 07/28/08
Services
CONTESTED CASE DECISIONS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1595
Mary M. Branch v. North Carolina Dept of Health and Human 08 DHR 1174 Elkins 08/11/08
Services, Value Options
Haywood Miller, Bobby Jean Graves Miller v. DHHS, Mental Health 08 DHR 1181 Overby 07/01/08
Licensure Certification Section
Donna Armstrong v. DHHS 08 DHR 1185 Brooks 12/02/08
Jan Williams v. Value Options, DHHS 08 DHR 1231 Overby 07/09/08
Heather Peete v. OAH 08 DHR 1281 Lassiter 07/02/08
Ann Moody v. DHHS 08 DHR 1299 Webster 07/18/08
Khahada Kirby v. Value Options 08 DHR 1310 Webster 07/18/08
Amir Abusamak v. N.C. Department of Health and Human Services 08 DHR 1325 Gray 07/16/08
Big Z Supermarket, Abdul Hamdan v. Cory Menees, NC Dept. of 08 DHR 1343 Overby 08/27/08
Health and Human Services
Alesia Alwahishi dba Brotherhood Market 08 DHR 1356 Gray 07/22/08
Nigel Brown v. Value Options 08 DHR 1358 Gray 08/29/08
Beverly Darlene Christian v. DHHS Hearing Office 08 DHR 1422 Elkins 11/24/08
Forever Young Group Care LLC T/A FY Inc v. DHHS, Div. of Health 08 DHR 1455 Lassiter 01/16/09
Service Regulation, Mental Health Licensure and Certification Section
Supported Living Youth Service, Kirk Hillian v. Div. of Health Service 08 DHR 1456 Joseph 10/22/08
Regulation
Michael Grondahl v. DHHS 08 DHR 1491 Gray 08/01/08
Tyechia Jones v. Value Options/DHHS 08 DHR 1492 Mann 09/18/08
Kelly A Schofield MD – Clinical Director Youth Quest Inc. v. 08 DHR 1505 Lassiter 09/08/08
N.C. Department of Health Service Regulation, Mental Health
Licensure and Certification Section
Holly Martin Ph.D, Div. of Medical Assistance of DHHS 08 DHR 1534 Webster 01/06/09
Edward Kenneth Smith v. NC Department of Health and Human 08 DHR 1537 Lassiter 09/16/08
Services, Division of Health Service Regulation
Brian C. Hargrove v. DHHS 08 DHR 1556 Webster 01/07/09
Elsie Mae Joiner v. Health Care Registry DHHS 08 DHR 1560 Lassiter 09/11/08
Margaret Brack for Elgin Brack v. Value Options Emery Milliken 08 DHR 1576 Lassiter 08/27/08
DHHS
Evans Momanyi Mose v. DHHS, Division of Health Service 08 DHR 1591 Webster 10/01/08
Regulation
Draughton's Supermarket, Betty Draughton v. Cumberland 08 DHR 1592 Gray 08/25/08
County Health Dept. WIC Office
Brittany Brown v. Value Options 08 DHR 1599 Webster 10/10/08
Evangeline Ingram v. Value Options 08 DHR 1618 Joseph 12/05/08
Tyvonne Sheri Glenn v. Value Options 08 DHR 1628 May 09/19/08
Robert Anthony Glenn, Sr., v. EDS, SMA, DHHS, Medicaid 08 DHR 1630 Brooks 10/20/08
Levi Rutty/Linda McLaughlin v. DHHS 08 DHR 1651 Elkins 01/14/09
Longview Childrens Day School v. Div. of Child Development 08 DHR 1676 Webster 01/06/09
Judy Grissett v. OAH, DHHS 08 DHR 1678 Webster 11/19/08
Tyrese Rogers/Linda McLaughlin v. DHHS 08 DHR 1685 Elkins 01/14/09
Shavon Maynor/Linda McLaughlin v. DHHS 08 DHR 1688 Elkins 01/14/09
William Scott Davis, Jr v. DHHS, Child Protective Services 08 DHR 1691 Webster 12/15/08
Donna Locklear v. Value Options 08 DHR 1695 Webster 11/19/08
Amanda Hennes v. N.C. Department of Health and Human Services 08 DHR 1696 Gray 09/22/08
Alexis Faulk v. DMA/Value Options 08 DHR 1701 Elkins 11/14/08
Bobbie L Cribb v. Office of Administrative Hearings 08 DHR 1714 Gray 09/08/08
Irene McLendon/Mikala McLendon v. Value Options 08 DHR 1722 Webster 10/01/08
Keyanna Byrd v. DHHS 08 DHR 1751 Webster 10/01/08
Janelle Gatewood v. Value Options 08 DHR 1763 Webster 10/10/08
Mr. and Mrs. Gregory and Martha Glenn v. HHS 08 DHR 1787 Brooks 10/27/08
Roxanne Haughton v. Value Options/DMA 08 DHR 1799 Elkins 10/14/08
Rainbow Academy, Dorothy Johnson v. Div. of Child Development 08 DHR 1838 Brooks 11/03/08
DHHS
Joshua Dmae Thompson (Consumer) Sebrena Yvett 08 DHR 1844 Webster 10/01/08
Thompson (Mother) v. Department of Mental Health
Christie Moriea Turner v. CMC Carolines Medical Center Mental Health 08 DHR 1848 Gray 10/27/08
Sativa Shalunda Brown v. DHHS, Div. of Health Service Regulation 08 DHR 1869 Gray 12/31/08
JE Cameron DDS & Associates v. DHHS, DMA 08 DHR 1885 Gray 10/27/08
Wendy McMillian v. DHHS 08 DHR 1887 Elkins 11/05/08
Penny A. Golden v. Medicaid 08 DHR 1890 May 11/05/08
Keystone Charlotte, LLC d/b/a The Keys of Carolina (Administrative 08 DHR 1913 Joseph 11/17/08
Penalty) v. DHHS, Div. of Health Service Regulation, Mental
Health Licensure and Certification Section
Forever Young Group Care LLC T/A FY Inc v. DHHS, Div. of Health 08 DHR 2159 Lassiter 01/16/09
Service Regulation, Mental Health Licensure and Certification Section
DEPARTMENT OF JUSTICE
Jamu Kimyakki Sanders v. N.C. Criminal Justice Education 06 DOJ 1741 May 08/29/08
And Training Standards Commission
CONTESTED CASE DECISIONS
23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009
1596
Dallas Ray Joyner v. Criminal Justice Education and Training Standards 07 DOJ 0719 Overby 04/15/08
Commission
Richard Junior Hopper v. Private Protective Services Board 07 DOJ 1071 Webster 02/21/08
Sheldon Avery McCoy v. Criminal Justice Education and Training 07 DOJ 1162 Mann 04/07/08
Standards Commission
David Steven Norris v. Private Protective Services Board 07 DOJ 1256 Elkins 04/16/08
Scott McLean Harrison v. North Carolina Criminal Justice Education 07 DOJ 1330 Webster 06/24/08
And Training Standards Commission
Brian Campbell v. Department of Justice, Company Police Program 07 DOJ 1344 Webster 02/25/08
John Mark Goodin v. Alarm Systems Licensing Board 07 DOJ 1405 Lassiter 04/04/08
James Lee Rodenbe