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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 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1561 EXECUTIVE ORDERS 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1562 EXECUTIVE ORDERS 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1563 EXECUTIVE ORDERS 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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 PROPOSED RULES 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.), PROPOSED RULES 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. PROPOSED RULES 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. TEMPORARY RULES 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 TEMPORARY RULES 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; TEMPORARY RULES 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. TEMPORARY RULES 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1579 (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; TEMPORARY RULES 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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: TEMPORARY RULES 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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 TEMPORARY RULES 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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; TEMPORARY RULES 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 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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. RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1586 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. RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1587 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 RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1588 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 RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1589 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 RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1590 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
Object Description
Description
Title | North Carolina register |
Date | 2009-02-16 |
Description | Vol. 23, Issue 16 (February 16, 2009) |
Digital Characteristics-A | 32 MB; 179 p. |
Digital Format | application/pdf |
Full Text | 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 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1561 EXECUTIVE ORDERS 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1562 EXECUTIVE ORDERS 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1563 EXECUTIVE ORDERS 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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 PROPOSED RULES 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.), PROPOSED RULES 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. PROPOSED RULES 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. TEMPORARY RULES 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 TEMPORARY RULES 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; TEMPORARY RULES 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. TEMPORARY RULES 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1579 (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; TEMPORARY RULES 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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: TEMPORARY RULES 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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 TEMPORARY RULES 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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; TEMPORARY RULES 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 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 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. RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1586 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. RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1587 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 RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1588 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 RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1589 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 RULES REVIEW COMMISSION 23:16 NORTH CAROLINA REGISTER FEBRUARY 16, 2009 1590 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 |
OCLC number | 13686205 |