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^.5i^j/cFyv(''^S'3^/,/^/^-^ en NORTH CAROLINA REGISTER -sf**- VOLUME 11 • ISSUE 23 • Pages 1778 - 1812 March 3, 1997 IN THIS ISSUE Environment, Health, and Natural Resources Human Resources %)eech & Language Pathologists & Audiologists Contested Case Decisions PUBLISHED BY I- %^,^,,,„:,..„„:^^J„. The Office cfAdmiuisihna&veHear^^ Rules Division PO Drawer 27447 Raleigh, NC27611-7447 %v * Telephone (919) 733-2678 '^^^ Fax (919) 733-3462 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA IN THIS ISSUE Volume 11, Issue 23 Pages 1778 - 1812 I. IN ADDITION Environment, Health, and Natural Resources Wildlife Resources Commission - Proclamation 1778 n. RULE-MAKING PROCEEDINGS Human Resources Departmental Rules 1779 Facility Services 1780 Medical Care Commission 1779 - 1780 Licensing Boards Speech & Language Pathologists & Audiologists . . 1780 March 3, 1997 HI. PROPOSED RULES Human Resources Medical Assistance 1781 - 1785 This issue contains documents officially filed through February 10, 1997. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) PC Drawer 27447 Raleigh, NC 27611-7447 (919) 733-2678 FAX (919) 733-3462 rV. CONTESTED CASE DECISIONS Index to AU Decisions 1786 - 1800 Text of Selected Decisions 96 ABC 1315 1801 - 1802 96 DHR 0670 1803 - 1807 96 EDC 0399 1808 - 181 1 V. CUMULATIVE EVDEX 1-46 Julian Mann III, Director James R. Scarcella Sr., Deputy Director Molly Masich, Director of APA Services Ruby Creech, Publications Coordinator Teresa Kilpatrick, Editorial Assistant Jean Shirley, Editorial Assistant Linda Richardson, Editorial Assistant Digitized by the Internet Archive in 2011 with funding from University of North Carolina at Chapel Hill http://www.archive.org/details/northcarolinareg1123nort rst lative of the regular sion oo oo 00 00 00 00 00 oo 00 OO oo oo oo OO oo oo oo OO 00 oo ON ON a. a> On a> ON On ON O; On ^ On ON a^ On ON ON On o o o o O o o o O O O o O o o o o o o ?o _llB^ in 1/1 w=l in in >n in in in in U-1 in <n •n in in in in m Wi « O o O O o o o O o o O o o o o o o O o o c _w e llilp 1 >o ? r- r- r- r- r^ r- t^ r- r- r- r- r- r- r- r- r- r- ^ ^ ^ On ON ^ ON CTn CT- ON ^ ON On On On ^ On ON 1 o o O o o o O o O o o o rj r^ r^ (N rj (N <N (N (N r4 (N (N r-i (N (N (N rj r^i p^ C! 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E" as ;/^ — _ ai . of; C — C "J^' r- " 'J . _ .f^ ^ I .— "5 E ^ -J j! ^ —•J .— 3 XI d £^ o u ou C >, O i J^ o. E O r-; tn •3 oi c o ^ o \> '— z y: g o o ^ ,^ r^ p ^ ci 13 — <^1 > 1 :y: > X < X! > ir, O O ^O o ^ 6 > — :/5 3 3 > -3 '3_ d M O .3 7^ 3 3 '^ 3 3 , o >-» Q o Tt ^ c ^ a O tfl in 3 > ^ >1 ^ "2 il -3 ; on ^ -3 ~ ^g -! ^^ '-^ '-J - r- 1^ Qi -= - .E d =,: ^ -^ '~ < '-^ ^ i: cj r: o rs o •5 3 J Z— ^3 -3 1-1 = 1 ~ ^ U - -a -J -7- XI O 3 •3 ^ c " -3 3 O = Z H .3 5 X IN ADDITION This Section contains public notices that are required to be published m the Register or have been approved by the Codifier ofRules for publication. North Carolina Wildlife Resources Commission 512 N. Salisbury Street Raleigh, North Carolina 27604-1188, 919-733-3391 Charles R. Fullwood, Executive Director PROCLAMATION Charles R. Fullwood, Executive Director, North Carolina Wildlife Resources Commission, acting pursuant to North Carolina General Statute §113-292(cl) and authority duly delegated by the Wildlife Resources Commission, hereby declares that the season for harvesting striped bass by hook-and-line shall open in all waters of the Roanoke River Striped Bass Management Area on Saturday, March 15, 1997 at 12:01 a.m. Effective March 15, 1997, striped bass may be harvested from 12:01 a.m. on Saturdays through 12:00 midnight on Sundays AND from 12:01 a.m. until 12:00 midnight on Wednesdays. From 12:00 a.m. on Mondays through 12:00 midnight on Tuesdays and from 12:01 a.m. on Thursdays through 12:00 midnight on Fridays, all striped bass, regardless of condition, shall be immediately returned to the waters where taken and no striped bass may be possessed. The Roanoke River Striped Bass Management Area is defined as the inland and joint fishing waters of the Roanoke River and its tributaries, extending from its mouth to Roanoke Rapids Dam, including the Cashie, Middle, and Eastmost rivers and their tributaries. This proclamation shall be effective at 12:01 a.m. March 15, 1997 and shall remain in effect until a new proclamation closing described waters or portions thereof for striped bass fishing is issued. NOTES: a) This Proclamation is issued under the authority of N.C.G.S. §§113-132; 113-134; 113-292; 113- 304; and 113-305. b) During the open season, the minimum length limit is 18 inches and the daily creel limit is 3 fish. From April 1 through May 31, no striped bass between 22 and 27 inches in length may be harvested. c) From April 1 through June 30, only a single barbless hook or lure with a single barbless hook (or hook with barb bent down) may be used in the inland waters of the Roanoke River upstream of U.S. Highway 258 bridge. d) Any person who violates this Proclamation also violates applicable law and is subject to the sanctions provided by law. NORTH CAROLINA WILDLIFE RESOURCES COMMISSION /s/by Charles R. Fullwood 1-29-97 Executive Director Date 11:23 NORTH CAROLINA REGISTER March 3, 1997 1778 RULE-MAKING PROCEEDINGS A Notice of Rule-making Proceedings is a statement of subject matter of the agency 's proposed rule making. The agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. Publication of a temporary rule ser\'es as a Notice of Rule-making Proceedings and can be fourul in the Register under the section heading of Temporary Rules. A Rule-rrxaking Agenda published by an agency ser\-es as Rule-making Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. TITLE 10 - DEPARTMENT OF HUMAN RESOURCES CHAPTER 1 - DEPARTMENTAL RULES A Jotice of Rule-making Proceedings is hereby given by 1 Vthe Department of Human Resources in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: W NCAC IB Authority for the rule-making: G.S. 131D-4.2(h) Statement of the Subject Matter: This rule will define the annual State/County Special Assistance rate setting methodology, which will include cost report documentation. Also included will be the cost report format and audit procedures. Reason for Proposed Action: G.S. 131D-4.2(h) mandates that the Department of Human Resources adopt rules for the rate-setting methodology and audited cost reports in accordance with G.S. 143B-10. Comment Procedures: Anyone wishing to comment should contact Tom Washburn, Department of Human Resources, Office of Controller, 616 Oberlin Road. Raleigh, NC 27605; 919/733-0169. ****************** CHAPTER 3 - FACILITY SERVICES SUBCHAPTER 3D - RULES AND REGULATIONS GOVERNING AMBULANCE SERVICE SUBCHAPTER 3M - MINIMUM STANDARDS FOR MOBILE INTENSIVE CARE UNITS A Jotice of Rule-making Proceedings is hereby given by 1 1 the North Carolina Medical Care Commission in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the nde(s) it proposes to adopt as a result of this notice of nde-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 10 NCAC 3D .0800 - .1500, 10 NCAC 3M - Other rules may be proposed in the course of the rule-making process. Authority for the rule-making: Chapter 131E, Article 7 Regulation of Ambulance Services; G.S. 131E-157 Statement of the Subject Matter: 10 NCAC 3D .0800 - .1500 - The North Carolina Medical Care Commission proposes to amend the rules governing ambulance service. The proposed amendments will come from the recommendations of a statewide task force made up of ambulance providers, physicians, nurses, administrators, and EMS education specialists which has conducted an in depth study of existing rules, including input from public meetings. Amendments will include updates to definitions, equipment requirements and inspection criteria for ambulance vehicles, educational requirements and certification criteria for Basic Life Support personnel, and ambulance provider licensing criteria. 10 NCAC 3M - The North Carolina Medical Care Commission proposes to amend the ndes governing equipment and supply requirements for Advanced Life Support (ALS) ambulance vehicles. The proposed amendments will come from the recommendations of a statewide task force made up of ambulance providers, physicians, nurses, administrators, and EMS education specialists which has conducted an in depth study of existing rules, including input from public meetings. Amendments will include updates to terminology and deletion of equipment requirements for vehicles used at the EMT-Advanced Intermediate level of care in conjunction with changes to 21 NCAC 32H eliminating this level of care. Reason for Proposed Action: 10 NCAC 3D .0800 - .1500 - Chapter 131 E, Article 7 authorizes the Medical Care Commission to establish rules for ambulance services including vehicles and personnel. This is the first comprehensive review of these rules since 1989. These amendments are necessary to update the ndes to refiect current emergency medical practice. 10 NCAC 3M - G.S. 131E- 15 7 authorizes the Medical Care Commission to establish rules for equipment requirements for ambulance vehicles. These amendments are necessary to 1779 NORTH CAROLINA REGISTER March 3, 1997 11:23 RULE-MAKING PROCEEDINGS update the equipment requirements for ALS vehicles to reflect concurrent changes made in ALS certification levels by the North Carolina Medical Board in 21 NCAC 32H. Comment Procedures: Persons who wish to make comment during the development of these rules should contact: Mr. Ed Seagroves NC Office of Emergency Medical Services PO Box 29530 Raleigh, North Carolina 27626-0530 Tele: (919) 733-2285 FAX: (919) 733-7021 CHAPTER 3 - FACILITY SERVICES SUBCHAPTER 3R - CERTinCATE OF >fEED REGULATIONS A Totice of Rule-making Proceedings is hereby given by 1 y the North Carolina Board of Examiners for Speech and Language Pathologists and Audiologists in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 21 NCAC 64 .0303(4) Authority for the rule-making: G.S. 90-298.1 Statement of the Subject Matter: Adequacy of Treatment Records Registered Assistants Reason for Proposed Action: To adopt rules mandated by G. S. 90-298. 1 as to registered assistants. A Totice of Rule-making Proceedings is hereby given by 1 ythe Division of Facility Senices in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 10 NCAC 3R .3000 Comment Procedures: The record will be open for receipt of written comments from March 10, 1997 mailed to the North Carolina Board of Examiners for Speech and Language Pathologists at P.O. Box 16885, Greensboro, NC 27416-0885 or delivered to a public hearing to be held on April 2, 1997 at 2:00 p.m. at the Sheraton Imperial, 4700 Emperor Boulevard, Durham, NC (1-40 at Page Road). Authority for the rule-making: G.S. 131£-176(25); 131E- 177(1): 131E-183(b) Statement of the Subject Matter: Update need determinations and policies for health senice facilities, beds and services, including nursing homes, intermediate care facilities for the mentally retarded (ICF/MR), end stage renal disease (ESRD). home health agencies, inpatient rehabilitation facilities, etc. Reason for Proposed Action: To adopt new rules to reflect changes in need determinations arui policies applicable to health service facilities which also will appear in the 1998 State Medical Facilities Plan. Comment Procedures: Comments, statements, data and other information may be submitted in writing to Jackie Sheppard. Ride-making Coordinator, P.O. Box 29530, Raleigh, NC 27626-0530 no later than May 2, 1997. TITLE 21 - OCCUPATIONAL LICENSING BOARDS CHAPTER 64 - BOARD OF EXAMINERS OF SPEECH AND LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS 11:23 NORTH CAROLINA REGISTER March 3, 1997 1780 PROPOSED RULES This Section contains the text ofproposed rules. At least 60 days prior to the publication of text, the agency published a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. TITLE 10 - DEPARTMENT OF HUMAN RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the DHR - Division of Medical Assistance intends to amerui rule cited as 10 NCAC 26H .0104. Notice of Rule-making Proceedings was published in the Register on November 15, 1996. Proposed Effective Date: August 1, 1998 A Public Hearing will be conducted at 1:30 p.m. on April 3, 1997 at the Division of Medical Assistance, 1985 Umstead Drive, Kirby Building, Room 132, Raleigh, NC 27603. Reason for Proposed Action: The objective of this amendment is to allow nursing facility providers to procure equipment which uses advanced technology to enhance the efficiency, quality, or safety of the work of direct patient care personnel. Comment Procedures: Written comments concerning this rule-making action must be submitted by April 3, 1997 to Portia Rochelle, APA Coordinator, Division of Medical Assistance, 1985 Umstead Drive, Raleigh, NC 27603. Fiscal Note: This Rules does affect the expenditures or revenues of state and local government funds. This Rule does not have a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. CHAPTER 26 - MEDICAL ASSISTANCE SUBCHAPTER 26H - REIMBURSEMENT PLANS SECTION .0100 - REIMBURSEMENT FOR NURSING FACILITY SERVICES .0104 COST REPORTING: AUDITING AND SETTLEMENTS (a) Each facility that receives payments from the North Carolina Medicaid Program must prepare and submit a report of its costs and other financial information, such as the working trial balance, related to reimbursement annually. The report must include costs from the fiscal period beginning on October 1 and ending on September 30 and must be submitted to the state on or before the December 31 that immediately follows the September 30 year end. A new provider must submit a report for the period beginning with the date of certification and ending on September 30. Hospital based nursing facilities with a fiscal year ending other than September 30 and State operated facilities with a June fiscal year ending must file their cost reports within 90 days after their fiscal year ends. Facilities that fail to file their cost reports by the due date are subject to payment suspension until the reports are filed. The Division of Medical Assistance may extend the deadline 30 days for filing the report if, in its view, good cause exists for the delay. A good cause is an action that is uncontrollable by the provider. (b) Cost report format. The cost report must be submitted on forms provided by the Division of Medical Assistance. The account structure for the report is based on the chart of accounts published by the American Healthcare Association in 1979 but amended or modified to the extent necessary to meet the special reimbursement requirements of this plan. The Division of Medical Assistance shall make one copy of the cost report format available to each facility (combination facilities receive only one) on or before July I of the reporting year for which the report is to be filed. (c) Cost fmding and allocation. Costs must be reported in the cost report in accordance with the following rules and in the order of priority stated. (1) Costs must be reported in accordance with the specific provisions of this plan as set forth in this Rule. (2) Costs must be reported in conformance with the Medicare Provider Reimbursement Manual, HCFA 15. (3) Costs must be reported in conformance with Generally Accepted Accounting Principles. (d) The specific cost reporting guidelines related to this plan are set forth in the following Paragraphs. The state shall publish guidelines, consistent with the provisions of this plan, concerning the proper accounting treatment for items described in this Rule as related operating expenses. A provider may request clarification in writing from the state if there is uncertainty about the proper cost center classification of any particular expense item. (1) Nursing Cost Center includes the cost of nursing staff, medical supplies, and related operating expenses needed to provide nursing care to patients, including medical records (including forms), utilization review, the Medical Director and the Pharmacy Consultant. The amount of nursing time provided to each patient must be recorded in order to allocate nursing cost between skilled and intermediate nursing care. (A) Effective October 1, 1996, Direct Patient Care Equipment shall be reported to the 1781 NORTH CAROLINA REGISTER March 3, 1997 11:23 PROPOSED RULES (2) (3) (4) (5) Nursing Cost Center and is defined as equipment which meets all of the following tests: (i) Its primary purtwse is to enhance the quality, efficiency, or safety of the work of direct patient care personnel: (ii) It enables direct patient care personnel to measure patients' physical characteristics or to implement the plans of care (including assistance with activities of daily Hying) of patients with physical impairments or to promote the safety of patients with cognitive impairments: (iii) It is not office or bedroom furniture: and (iv) It is not a communications device or computer hardware or software. The Division of Medical Assistance shall make available a non-all-inclusive list of items which may be reported as direct patient care equipment, consistent with the provisions of this Rule. This list may be prospectively modified bj; the Division of Medical Assistance at any time, based on the preponderance of evidence. Items reported as direct patient care equipment which are not on this list are subject to a case by case review during any audit conducted under Paragraph (e) of this Rule. Providers must demonstrate by a preponderance of evidence that such items meet the definition of direct patient care equipment as stated in this Rule. Providers are required to exercise the prudent buyer principle when procuring direct patient care equipment. This provision is applicable to lease or depreciation expense incurred on or after October J_^ 1996 regardless of when the equipment was initially leased or acquired. Direct patient care equipment maintenance and repair costs shall be reported in the Operation of Plant and Maintenance Cost Center. All other costs associated with direct patient care equipment shall be reported in the cost centers that would be appropriate if the costs were associated with other equipment. Dietary Cost Center includes the cost of staff, raw food, and supplies needed to prepare and deliver food to patients. Laundry and Linen Cost Center includes the cost of staff, bed linens (replacement mattresses and related operating expenses needed to launder facility-provided items). Housekeeping Cost Center includes the cost of staff and supplies needed to keep the facility clean. Patient Activities Cost Center includes the cost of staff, supplies, and related operating expenses needed to provide appropriate diversionary activities for patients. (6) Social Services includes the cost of social workers and related operating expenses needed to provide necessary social services to patients. (7) Ancillary Cost Center includes the cost of all therapy services covered by the Medicaid program and billable medical supplies. Providers must bill Medicare Part B for those ancillary services covered under the Medicare Part B program. Ancillary cost centers include: Radiology, Laboratory, Physical Therapy, Occupational Therapy, Speech Therapy, Oxygen Therapy, Intravenous Fluids, Billable Medical Supplies, Parenteral/Enteral Therapy and life sustaining equipment, such as oxygen concentrators, respirators, and ventilators and other specifically approved equipment. (A) Effective October \^ 1996, air fluidized beds (e.g. Clinitron beds), low air loss mattresses or beds and alternating pressure mattresses may be recorded in the life sustaining equipment cost center. This program is applicable to lease or depreciation expense incurred on or after October 1^ 1996 regardless of when the equipment was initially leased or acquired. (B) Effective October 1, 1994, a separate ancillary cost center shall be established to include costs associated with medically related transportation for facility residents. Medically related transportation costs include the costs of vehicles leased or owned by the facility, payroll costs associated with transporting residents and payments to third parties for providing these services. (8) Administrative and General Cost Center includes all costs needed to administer the facility including the staff costs for the administrator, assistants, billing and secretarial personnel, personnel director and pastoral expenses. It includes the costs of copy machines, dues and subscriptions, transportation, income taxes, legal and accounting fees, start-up, and other administrative costs as set forth in the Chart of Accounts. Interest expense other than that stemming from mortgages or loans to acquire physical plant items shall be reported here. (9) Property Ownership and Use: (A) This cost center includes all allowable costs related to the use of the physical assets including building, fixed equipment and movable equipment, that are required to deliver patient care, except the special equipment, as specified in .OlO' l 11:23 NORTH CAROLINA REGISTER March 3, 1997 1782 PROPOSED RULES Subparagraphs (d)(1) or (d)(7) of this Rule. (11) feite—tto—may—be — charged—1«—th« life sustaining—equipment—eest — center. SpociFically Except for the special equipment noted in Subparagraphs (d)(1) and (d)(7), it includes the following items: (1) all equipment expense regardless of equipment nature, (ii) lease e.xpense for all physical assets, (iii) depreciation of assets utilizing the straight line method, (iv) interest expense of asset related liabilities, (e.g., mortgage expense), (v) property taxes. (B) For the purposes of computing allowable lease expense and for balance sheet presentation for Return on Equity computations (see Rule .0105 of this Section) , leases shall not be capitalized. (C) In establishing the allowable cost for depreciation and for interest on capital indebtedness, with respect to an asset which has undergone a change of ownership, the valuation of the asset shall be the lesser of allowable acquisition cost less accumulated depreciation to the first owner of record on or after July 18, 1984 (12) or the acquisition cost to the new owner. Depreciation recapture will not be performed at sale. The method for establishing the allowable related capital indebtedness shall be as follows: (i) The allowable asset value shall be (13) divided by the actual acquisition cost, (ii) The product computed in step 1 shall be multiplied times the value of any related capital indebtedness, (iii) The result shall be the liability amount upon which interest may be recorded at the rate set forth in the debt instrument or such lower rate as the state may prove is reasonable. The allowable asset and liability values established through the process in this Rule shall be those used in balance sheet presentations for return on equity computation (see Rule .0105 of this Section ). These (14) procedures are established to implement the provisions of PL 98-369 Section 2314. (10) Operation of Plant and Maintenance Cost Center includes all costs necessary to operate or maintain the functionality and appearance of the plant. These include: maintenance staff, utilities, repairs and maintenance to all equipment. Equipment Expense. Equipment is defined as an item with a useful life of more than two years and a value greater than five hundred dollars ($500.00). Equipment ownership and use costs shall be reported in the Prope rty Ownership and Use Cost Center.—Equipment maintenance and repair costs shall be reported in the Operation of Plant and Maintenance Cost Center.—Equipment shall not be reported elsewhere. (A) Effective October 1^ 1996, Direct Patient Care Equipment depreciation or lease expense incurred on or about October \^ 1996, shall be reported under the Nursing Cost Center, as noted under Subparagraph (d)( 1 ) of this Rule. All other costs associated with direct patient care equipment shall be reported in the cost centers that would be appropriate if the costs were associated with other equipment. (B) Other equipment ownership and use costs shall be reported in the Property Ownership and Use Cost Center. Other equipment maintenance and repair costs shall be reported in the Operation of Plant and Maintenance Cost Center. Other equipment shall be reported elsewhere. Training Expense. Training expense must be identified in the appropriate benefiting cost center. The costs of training nurse aides must be identified separately and may include the cost of purchasing programs and equipment that have been approved by the State for training or testing. Home Office Costs. Home office costs are generally charged to the Administrative and General Cost Centers. However, personnel costs which are direct patient care oriented may be allocated to "direct" patient care cost centers if time records are maintained to document the performance of direct patient care services. No Home office overhead may be so allocated. The basis of this allocation among facilities participating in the North Carolina Medicaid program may be: (A) specific time records of work performed at each facility, or (B) patient days in each facility to which the costs apply relative to the total patient days in all the facilities to which the costs apply. Management Fees. Management fees are charged to the Administrative and General Cost Center. However, a portion of a management fee may be allocated to a direct patient care cost center if time records are maintained to document the performance of direct patient care services. The amount so allocated may be equal only to the salary and fringe benefits of persons who are performing direct patient care services while 1783 NORTH CAROLINA REGISTER March 3, 1997 11:23 PROPOSED RULES employed by the management company. Records adequate to support these costs must be made available to staff of the Division of Medical Assistance. The basis of this allocation among facilities participating in the North Carolina Medicaid program may be: (A) specific time records of work performed at each facility, or (B) patient days in each facility to which the costs apply relative to the total patient days in all the facilities to which the costs apply. (15) Related Organization Costs. A nursing facility shall demonstrate by convincing evidence to the satisfaction of the Division of Medical Assistance that the costs are reasonable. Reasonable costs of related organizations shall be identified in accordance with direct and indirect cost center categories as follows: (A) Direct Cost: (i) Compensation of direct care staff such as nursing personnel (aides, orderlies, nurses), food service workers, housekeeping staff and other personnel who would normally be accounted for in a direct cost center, (ii) Supplies and services that would normally be accoimted for in a direct cost center. (iii) Capital, rental, maintenance, supplies/repairs and utility costs (gas, water, fuel, electricity) for facilities that are not typically a part of a nursing facility. These facilities might include such items as warehouses, vehicles for delivery and offices which are totally dedicated or clearly exceed the number, size, or complexity required for a normal nursing facility, its home office, or management company. (iv) Compensation of all administrative staff who perform no duties which are related to the nursing facility or its home office and who are neither officers nor owners of the nursing facilities or its home office. (B) Indirect Cost: (i) Capital, rental, maintenance, supplies/repairs, and utility costs which are normally or frequently a part of a nursing facility. This would include, for example, kitchen and laundry facilities. (ii) Except for salary and fringe benefits of Personnel, Accounting and Data Processing staff, home office costs which are allocated by methods approved by the Division of Medical Assistance are direct costs when the work performed is specific to the related organization that provides a direct care service or product to the provider. In determining if an allocation method is appropriate, a case-by-case review shall be made based on the preponderance of evidence. A proposed allocation method shall be denied if the review supports a determination that the associated cost either exceeds the cost of comparable products or services that could be purchased elsewhere or was for services that were not related to direct patient care or services not covered by the North Carolina Medical Assistance program. (iii) Compensation of all administrative staff who perform any duties for the nursing facility or its home office. (iv) All compensation of all officers and owners of the nursing facility or its home office, or parent corporation. A related organization must file a Medicaid Cost Statement (DMA-4083) identifying its costs, adjustments to costs, allocation of costs, equity capital, adjustments to equity capital, and allocations of equity capital along with the nursing facilities cost report. A home office, or parent company, will be recognized as a related organization. Auditable records to support these costs must be made available to staff of the Division of Medical Assistance and its designated contract auditors. Undocumented costs will be disallowed. A nursing facility shall demonstrate by convincing evidence to the satisfaction of the Division of Medical Assistance that the criteria in the Medicare Provider Reimbursement Manual, Section 1010, has been met in order to be recognized as an exception to the related organization principle. The related party principle is stated in the Medicare Provider Reimbursement Manual, Section 1010, as follows: Costs applicable to services, facilities, and supplies furnished to the provider by organizations related to the provider by common ownership or control are includable in the allowable cost of the provider at the cost to the related organization. However, such cost must not exceed the price of comparable services, facilities, or supplies that could be purchased elsewhere. The purpose of this principle is two-fold: to avoid the payment of a profit factor to the provider through the related organization (whether related by common ownership or control), and to avoid payment of artificially inflated costs which may be generated from less than arm's length bargaining. When a related organization is deemed an exception; reasonable 11:23 NORTH CAROLINA REGISTER March 3, 1997 1784 PROPOSED RULES charges by the related organization to the nursing facility are recognized as allowable costs; receivable/payables from/to the nursing facility and related organization deemed an exception are not adjusted from the nursing facility's balance sheet in computing equity capital. The Medicare Provider Reimbursement Manual is often referred to as the HCFA Publication #15-1 and is hereby incorporated by reference including any subsequent amendments and editions. A copy is available for inspection at the Division of Medical Assistance, 1985 Umstead Drive, Raleigh, North Carolina. Copies may be obtained from the US Department of Commerce, National Technical Information Services, Subscription Department, 5285 Port Royal Road, Springfield, VA 22161 at a cost of one hundred forty seven dollars ($147.00). Purchasmg instructions may be received by calling (703) 487-4650. Updates are available for an additional fee. (e) Auditing and Settlement. All filed cost reports must be desk audited and interim reimbursement settlements made in accordance with the provision of this plan. This settlement is issued within 180 days of the date the cost report was filed or within 180 days of December 31 of the fiscal year to which the report applies, whichever is later. The state may elect to perform field audits on any filed cost reports within three years of the date of filing and issue a fmal settlement on a time schedule that conforms to Federal law and regulation. If the state decides not to field audit a facility a fmal reimbursement notice may be issued based on the desk audited settlement. The state may reopen and field audit any cost report after the final settlement notice to comply with Federal law and regulation or to enforce laws and regulations prohibiting abuse of the Medicaid Program and particularly the provisions of this reimbursement plan. (0 This reimbursement limitation shall become effectiv e in accordance with the provisions of G.S. 1Q8A 55(c). These changes to the Reimbursement for Nursing Facility Services will become effective when the Health Care Financing Administration approves amendment 96-05 submitted to HCFA by the Director of the Division of Medical Assistance on or about October \^ 1996. Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 C.F.R. 447. Subpart C. 1785 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS Ihis Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. Copies of the decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. OmCE OF ADMINISTRATIVE HEARINGS Chief Administrative Law Judge JULIAN MANN, III Senior Administrative Law Judge FRED G. MORRISON JR. ADMINISTRA TIVE LA W JUDGES Brenda B. Becton Sammie Chess Jr. Beecher R. Gray Meg Scott Phipps Robert Roosevelt Reilly Jr. Dolores O. Smith Thomas R. West AGENCY CASE NLTVIBER ALJ DATE OF DECISION Pl-BLISHED DECISION REGISTER CITATION ADMINISTRATION Douglas J, Register v. Department of Administration Purchase and Contract Budd Seed, Inc v Department of Administration ALCOHOLIC BENTRAGE CONTROL CONCVDSSION 96 DOA 0172 96 DOA 0281 Osama Arafat Sadar v Alcoholic Beverage Control Commission Alcoholic Beverage Control Commission v James Eads Sprowles Cole Enieriainment. Inc v. Alcoholic Beverage Control Commission Fuad Saif Murshed v Ale Bev. Ctl Comm & Durham Mem Bapi Ch, Alcoholic Beverage Control Commission v Tremik, Inc- Ciiy of Raleigh v Alcoholic Beverage Control Commission and Marshall Sieviari. ID. Robert David Park, and Park Stewart Inc Alcoholic Beverage Control Commission v Maria Virginia Tramonuno Alcoholic Beverage Control Commission v, Huffman Oil Co.. Inc. Pinakin P Talate v Alcoholic Beverage Control Commission Alcoholic Beverage Control Commission v. Entrepreneur, Inc Alcoholic Beverage Control Commission v. Zell, Inc Alcoholic Beverage Control Commission v. Henry Franklin Gurganus Andrew Parker v Alcoholic Beverage Control Commission Barraq Sabri Alquza v Alcoholic Beverage Control Commission Alcoholic Beverage Control Comm v Partnership T/A T & L Groceries Alcoholic Beverage Control Commission v, Cashion's Food Man, Inc. Alcoholic Beverage Control Commission v. E.K.'s n. Inc. Carl E. Collins Bro Bee. Inc v. Alcoholic Beverage Control Commission Alcoholic Beverage Control Commission v. Donald Ray Doak Alcoholic Beverage Control Commission v. Janice Lorraine Jeter Alcoholic Beverage Control Commission v Well Informed. Inc. Alcoholic Beverage Control Commission v Kubbard. Inc. Alcoholic Beverage Control Commission v. Siemmermans's. Inc. Reilly Chess 08/16/96 09/19/96 95 ABC 0721 Gray 07/09/96 95 ABC 0883*" Gray 07/10/96 95 ABC 0917 West 08/21/96 11:12 NCR 1027 95 ABC 0922 Chess 04/24/96 95 ABC 0925 Morrison 03/25/96 95 ABC 1143 Morrison 11/08/96 11:17 NCR 1362 95 ABC 1200 West 04/23/96 95 ABC 1251 West 04/03/96 11:03 NCR 166 95 ABC 1329 West 04/10/96 95 ABC 1363 Reilly 05/02/96 95 ABC 1366 West 06/17/96 95 ABC 1389 West 04/01/96 95 ABC 1402 Phipps 03/27/96 95 ABC 1424 Phipps 04/03/96 95 ABC 1443 West 03/26/96 95 ABC 1444 Gray 03/13/96 95 ABC 1458 Chess 08/12/96 95 ABC 1480 West 04/1 5/96 95 ABC 1488 West 03/29/96 96 ABC 0013 Reilly 04/26/96 96 ABC 0016 Chess 05/28/96 96 ABC 0017 Reilly 05/20/96 96 ABC 0018 Chess 05/28/96 11:23 NORTH CAROLINA REGISTER March 3, 1997 1786 CONTESTED CASE DECISIONS AGENCY CASE NfinviBER ALJ DATE OF DECISION PUBLISHED DECISION REGISTER CITATION Beroth Oil Company Beroth Oil Company Giles Rozier Clifton Franklm Smith George Wright and Alice Ramsuer v .Alcoholic Beverage Control Comm. 96 Alcoholic Beverage Control Commission v. Bayron Green 96 Alcoholic Beverage Control Commission v. Circle K Stores. Inc. 96 Alcoholic Beverage Control Commission v. Robert Montgomery McKnight96 Alcoholic Beverage Control Commission v. Cadillacs Discotheque. Inc. 96 Gerald Audry Sellars v Alcoholic Beverage Control Commission 96 Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony 96 Alcoholic Beverage Control Commission v. Factory Night Club. Inc. 96 Alcoholic Beverage Control Commission v. C.NH, Enterprises. Inc. 96 Alcoholic Beverage Control Commission v, Millicent J Green 96 Ghassan Hasan Issa v. Alcoholic Beverage Control Commission 96 Alcoholic Beverage Control Commission v. Abdelhakeem Muraweh Saleh 96 Alcoholic Beverage Control Commission v. Triangle Drive-In Alcoholic Beverage Control Commission v. Beroth Oil Company Alcoholic Beverage Control Commission v. Beroth Oil Company Alcoholic Beverage Control Commission v. Alcoholic Beverage Control Commission v. Alcoholic Beverage Control Commission v. Alcoholic Beverage Control Commission v. Alcoholic Beverage Control Comm. v. Crown Central Petroleum Corp Dilthra Smith Pation v Alcoholic Beverage Control Commission Virginia Caporal v. Alcoholic Beverage Control Commission Alcoholic Beverage Control Commission v. James Eads Sprowles Alcoholic Beverage Control Commission v. Chae Ypo Chong Alcoholic Beverage Control Commission v Albert S. Carter Alcoholic Beverage Control Commission v, Taleb Abed Rahman Alcoholic Beverage Control Comm v Cenlergrove Emertainmenl Ent. Michael L. Harris D,B/A Big House Inc v. Alcoholic Beverage Control Joseph Marcel Etienne v. Alcoholic Beverage Control Commission Alcoholic Beverage Control Commission v. Jesse Smith Alcoholic Beverage Control Commission v. Winn Dixie Charlotte. Inc Alcoholic Beverage Control Commission v. Winn Di.xie Charlotte, Inc. Louis Corpening v. Alcoholic Beverage Control Commission Alcoholic Beverage Control Commission v. Joyce N. Capra HARB Inc. v. Alcoholic Beverage Control Commission Alcoholic Beverage Control Commission v. Warner Enterprises. Inc. Alcoholic Beverage Control Commission v. James Ramsey. Jr. Alcoholic Beverage Control Commission v. Russell Bernard Speller Alcoholic Beverage Control Comm. v. Ptnrshp.T/A Blue Front Groc Alcoholic Beverage Control Comm. v. Crown Central Petroleum Corp. Alcoholic Beverage Control Commission v. Anthony Jerome Foster Alcoholic Beverage Control Comm, v Park Entertainment. Inc. ABC 0058 ABC 0097 ABC 0134 ABC 0135 ABC 0136 ABC 0160 ABC 0184 ABC 0226 ABC 0232 ABC 0234 ABC 0256 ABC 0381 ABC 0443 .-KBC 0447 .ABC 0448 ABC 0449 ABC 0450 ABC 0473 ABC 0474 ABC 0482 .ABC 0505 ABC 0507 ABC 0526*" ABC 0530 ABC 0534 ABC 0551 ABC 0583 ABC 0680 ABC 0718 ABC 0804 ABC 0858 ABC 0859 ABC 0985 ABC 1060 ABC 1124 ABC 1315 ABC 1317 ABC 1394 ABC 1469 ABC 1584 ABC 1587 ABC 1928 Becton Becton Gray Phipps Phipps Becton Phipps Phipps Becton Smith Morrison Chess Reilly Morrison Morrison Morrison Morrison Morrison Reilly Morrison Morrison Becton Gray Morrison Morrison West Reilly Phipps Phipps Gray Morrison Morrison Gray Reilly Phipps Gray Gray Smith Smith Gray Reilly Smith 04/16/96 08/23/96 11/06/96 05/09/96 12/04/96 06/25/96 05/09/96 08/02/96 07/09/96 06/13/96 05/23/96 08/27/96 06/11/96 08/30/96 08/30.'96 08/30/96 08/30/96 09/19/96 08/12/96 10/18/96 08/06/96 10/04/96 07/10/96 10/29/96 08/05/96 11/14/96 08/12/96 02/12/97 10/17/96 11/19/96 11/21/96 11/21/96 09/26/96 11/15/96 10/23/96 01/30/97 02/03/97 12/20/96 12/09/96 02/12/97 01/29/97 02/06/97 1 1 :08 NCR 564 11:13 NCR 1085 11:23 NCR 1801 CONftDSSION FOR AUCTIONEERS John W Foster v Auctioneer Licensing Board Barry G. York v. Auctioneer Licensing Board 96 CFA 0201 96 CFA 0297 Phipps Smith 05/06/96 10/18/96 DEPARTMENT OF CORRECTION James J. Lewis v. Department of Correction CREVIE CONTROL AND PUBLIC SAFETY 96 DOC 0772 West 09/05/96 Roland Lee Kelly. Jr. v. United Family Services. Victim .Assistance/Crime 95 Victims Compensation Comm. Robert F. Bronsdon v. Crime Victims Compensation Commission Helen B. Hunter-Reid v Crime Victims Compensation Commission Deborah C Passarelli v. Crime Victims Compensation Commission Kenneth Saunders v Victims Compensation Commission Franklin McCoy Jones v. Crime Victims Compensation Commission Ruby H Ford v Crime Victims Compensation Commission Manuel Cervantes v. Victims Compensation Fund Sheila Carol Blake v. Victims Compensation Commission James T. Mungo v. Victims Compensation Commission Jerome Crutchfield v. CPS. Victims Compensation Commission William Theodore Frazier v. Crime Victims Compensation Commission Emma Coble v. Crime Victims Compensation Commission CPS 0568 Morrison 05/29/96 95 CPS 1216 Chess 05/28/96 95 CPS 1336 Smith 03/29/96 11:02 NCR 93 95 CPS 1399 Reilly 07/18/96 11:09 NCR 814 95 CPS 1445 Chess 03/26/96 96 CPS 0056 Smith 07/03/96 96 CPS 0110 Reilly 04/1 8'96 96 CPS 0118 Chess 03/19/96 96 CPS 0280 West 07/10/96 96 CPS 0333 Reillv 07/09/96 96 CPS 0340 Phipps 09/05/96 96 CPS 0435 Chess 08/22/96 96 CPS 0468 Chess 09/25/96 1787 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS AGENCY Donna Williams v Crime Victims Compensation Commission Daisy Reid v Crime Victims Compensation Commission Earlie McLaurin, Jr. Delano McLaurin. Sr v. Crime Victims Comp Comm96 Anthony P. Dawkins v. Crime Victims Compensation Commission Judy Worley Milam v. Crime Victims Compensation Commission James A- Cherry v. Crime Control & Public Safety Shirley M King v. Crime Victims Compensation Mark Matthews for Child Victim v. Crime Victims Compensation Comm. Clara Durham v. Victims Compensation George Battle, Jr. v. Crime Control & I^jblic Safety Shawn P, Saddler v. Victims Compensation Commission David Carl Anderson v. Crime Victims Compensation Commission Douglas Alan West v. Crime Victims Compensation Commission ENVIRONMENT, HEALTH, AND NATURAL RESOURCES CASE DATE OF NUMBER ALJ DECISION 96 CPS 0493 Morrison 06/13/96 96 CPS 0499 West 11/18/96 96 CPS 0639 West 01/21/97 96 CPS 0716 Reilly 08/16/96 96 CPS 0717 Gray 11/21/96 96 CPS 0793 Phipps 01/17/97 96 CPS 0802 West 08/08/96 96 CPS 0832 Becton 08/20/96 96 CPS 0906 Phipps 09/23/96 96 CPS 1006 Phipps 01/17/97 96 CPS 1109 Morrison 01/02/97 96 CPS 1409 Smith 11/25/96 96 CPS 1888 West 01/03/97 PUBLISHED DECISION REGISTER CITATION Gribble & Assoc. & Four Seasons Car Wash v. EHNR Webster Environmental Inc. v. EHNR, Asbestos Hazard Mgmt. Branch Wilton Evans v. Environment, Health, & Natural Resources David Martin Shelton v. Rockingham County Dept/Public Health, EHNR Kinston Urological Associates, PA. v NC. Cancer Program Kinston Urological Associates, PA. v. NC. Cancer Program Elsie & Tony Cecchini v. Environment, Health, & Natural Resources United Organics Corporation v. Environment. Health. & Natural Res. Gerald Mac Clamrock v. Environment, Health. & Natural Resources Phillip T. Goetz v Carteret County Health Center John Milazzo v Environment. Health. & Natural Resources Wayne Marshall, Pres. Metro Area Dev , Inc. v. EHNR David J. Mohn v. Environment, Health, & Natural Resources Robert D. Smith v. Brunswick County Health Dept , Bolivia, NC Elizabeth Shepard Covin v. Environment, Health. &. Natural Resources Reuben Massey v. Environment. Health, and Natural Resources Joseph London v Environment. Health, and Natural Resources 95 EHR 0576 Gray 04/25/96 95 EHR 0647 Becton 01/24/97 95 EHR 0843 Reilly 07/17/96 95 EHR 0941 West 05/01/96 95 EHR 1198*- Smith 03/27/96 1 1 :02 NCR 97 95 EHR 1199*= Smith 03/27/96 11:02 NCR 97 95 EHR 1240 Reilly 04/22/96 96 EHR 0064 Smith 07/01/96 96 EHR 0168 Phipps 05/06/96 96 EHR 0596 Smith 01/23/97 96 EHR 0644 Reilly 08/13/96 96 EHR 0826 West 10/01/96 96 EHR 0947 Smith 10/04/96 96 EHR 1057 Chess 02/04/97 96 EHR 1258 Becton 01/14/97 96 EHR 1301 Reilly 12/18/96 96 EHR 1397 Reilly 12/10/96 Coastal Resources Martin W Synger v Division of Coastal Management 95 EHR 1006 J. E. Smith Construction Co. v. Division of Coastal Management 96 EHR 0074 Theodore D. Barris v. Town of Long Beach, NC & Coastal Mgmt, EHNR 96 EHR 0277 Chess 05/13/96 Smith 02/23/96 West 05/09/96 Environmental Health Forest Gate Motel v. Environment. Health, and Natural Resources 96 EHR 0076 Paradise Ridge Home Owners by Anne Norburn v. EHNR. Env. Health 96 EHR 0162 Zack Diakogiannis v. EHNR. Division of Environmental Health 96 EHR 0768 West 06/17/96 Phipps 05/06/96 Gray 01/08/97 Environmental Management Frank A. Corriher & Sons Well Drilling. Inc. v. Env. Mgmt.. EHNR North Buncombe Assoc of Concerned Citizens v. Env. Mgmt. EHNR Ford Motor Company v. EHNR, Division of Environmental Management Herman E. Smith v. Division of Environmental Management Lake Summit Property Owners Assoc, v. EHNR, Environmental Mgmt. Conover Lumber Co . Inc. v, EHNR. Division of Environmental Mgmt. City of Reidsville. a Municipal Corp. v. EHNR. Environmental Mgmt. Jack West d/b/a Jack West Tree Service v. Environmental Mgmt Comm. The Smithfield Packing Co., Inc.. v. EHNR. Environmental Mgmt. and Citizens for Clean Industry. Inc. and Bladen Environment Commscope. Inc v. EHNR. Division of Environmental Management Stephen L Reedy v. EHNR. Division of Environmental Management Rayco Utilities. Inc. v EHNR. Division of Environmental Management Clover M Farms. Inc. v. EHNR, Division of Environmental Management Providence Glen Associates v. Environmental Management, EHNR Overcash Gravel & Grading Co , Inc. v. Division of Environmental Mgmt 96 95 EHR 0048 Phipps 09/20/96 11:14 NCR 1191 95 EHR 0108 Chess 02/03/97 95 EHR 0588 Smith 12/20/96 95 EHR 0962 West 04/30/96 95 EHR 1022 Reilly 12/30/96 95 EHR 1081 Reilly 04/12/96 95 EHR 1335 Gray 10/01/96 11:15 NCR 1249 95 EHR 1421 Morrison 04/08/96 95 EHR 1474 West 07/03/96 96 EHR 0078 Gray 12/23/96 96 EHR 0181 Gray 12/16/96 96 EHR 0367 Becton 10/04/96 96 EHR 0405 Becton 06/10/96 96 EHR 0648 Becton 08/12/96 EHR 0990 West 10/29/96 Land Resources 11:23 NORTH CAROLINA REGISTER March 3, 1997 1788 CONTESTED CASE DECISIONS AGENCY CASE NUMBER ALJ DATE OF DECISION PUBLISHED DECISION REGISTER CITATION K&G Properties, Inc. v. EHNR, Division of Land Resources Marine Fisheries 95 EHR 1078 Smiih 03/25/96 Roberl I Swinson. Sr. v EHNR. Health & Nat Res . Marine Fisheries 95 EHR 0320 Grayden L. Fulcher and Michael Styron. Sr v. Div, of Marine Fisheries 96 EHR 0O03 Johnny R. Stotesberry v Marine Fisheries Commission 96 EHR 0072 Julian G. Gilgo v. Environment, Health, and Natural Resources 96 EHR 0692 Radiation Protection Marsha L. Powell v EHNR, Division of Radiation Protection Nancy S. Webb v. EHNR, Division of Radiation Protection Olivia Joyce Foushee v. EHNR, Division of Radiation Protection WWaste Management R. Donald Phillips v. EHNR. Solid Waste Management Division R Donald Phillips v EHNR. Solid Waste Management Division GRACE and Margaret L. Caudle-Beck v. EHNR, Solid Waste Mgmt. GRACE and Margaret L. Caudle-Beck v. EHNR, Solid Waste Mgmt. Water Quality Ben Moses v. EHNR, Division of Water Quality WIC Program Chess 03/29/96 11:03 NCR 168 Reilly 03/06/96 Gray 08/19/96 11:11 NCR 955 West 12/06/96 11:19 NCR 1530 96 EHR 1116 Smith 10/10/96 96 EHR 1131 Gray 10/23/96 96 EHR 1221 Chess 01/31/97 95 EHR 1190»'' Gray 05/22/96 96 EHR 0554*" Gray 05/22/96 96 EHR 1125 Phipps 12/06/96 96 EHR 1125 Phipps 02/18/97 96 EHR 1085 Lazelle Marks v EHNR, Division of Maternal and Child Health 95 EHR 0870 Ham Sader v. Nutrition Services, Div/Maternal & Child Health, EHNR 96 EHR 0054 Bob's Quick Mart. Bobby D Braswell v. Env., Health. & Natural Res. 96 EHR 0091 Larry E. Mis v USDA-Food/Cons Svc. Cory Menees-WIC Prog.. EHNR 96 EHR 0164 Naser H. Hammad v. Dept. of Environment. Healdi. & Natural Resources 96 EHR 0632 Jamil M Saleh v. Dept of Environment. Health. & Natural Resources 96 EHR 0634 Khaled M. Alzer v. Dept. of Environment. Health, & Natural Resources 96 EHR 0721 EQUAL EMPLOYMENT OPPORTUNITIES Marsha Dianne McKoy v. DHR, DMH/DD/SAS. Caswell Center Carl D Davis v Department of Correction HUMAN RESOURCES 90 EEC 0379 91 EEC 1101 Phipps Chess Smith 01/21/97 West 03/27/96 West 05/22/96 Smith 04/02/96 Phipps 03/19/96 Reilly 07/09/96 Phipps 09/04/96 Reilly 07/30/96 10/08/96 05/06/96 Cassandra M, Deshazo v. Christine E. Carroll, Chf Chid Abuse/Neg. Sec. 95 DHR 1410 Medicus Robinson v. Department of Human Resources 96 DHR 0167 Linda Gabriel Wallace v. Charlotte Health Care Center 96 DHR 1544 Phipps 03/28/96 Smith 04/12/96 Phipps 01/23/97 Division of Child Development Molly Fallin v. Department of Human Resources Molly Fallin v. Department of Human Resources Mary T Hill v. DHR. Division of Child Development lola Roberson v. DHR. Division of Child Development Zannie M. Allen v DHR. Division of Child Development Mt Pleasant Church v. DHR. Division of Child Development Yvette Nivens v. DHR. Division of Child Development Sarah M. Carr. CSWM v. DHR. Division of Child Development Division of Facility Services Eloise Brown v Dept of Human Resources. Division of Facility Services Harry Martin Bastian v DHR. Division of Facility Services Kelly Thomas v. DHR, Division of Facility Services Community Care ttl v. DHR. Division of Facility Services Community Care #4 v. DHR. Division of Facility Services Billie Mitchell v. Department of Human Resources (DFS) Jo Ann Boyd Capps v. DHR. Division of Facility Services Peggy Murray v. DHR. Division of Facility Services 94 DHR 0872*' Gray 05/15/96 95 DHR 1013*' Gray 05/15/96 95 DHR 1192 Phipps 03/27/96 95 DHR 1244 Gray 05/16/96 96 DHR 0304 Gray 08/15/96 96 DHR 0720 Gray 11/19/96 96 DHR 1161 Morrison 11/19/96 96 DHR 2089 Smith 02/11/97 95 DHR 1002 Phipps 03/07/96 96 DHR 0287 West 08/21/96 96 DHR 0670 Becton 01/29/97 11:23 NCR 1803 96 DHR 0934 Becton 10/16/96 96 DHR 0935 Becton 10/16/96 96 DHR 0975 Phipps 01/02/97 96 DHR 1115 Gray 12/12/96 96 DHR 1531 Smith 01/31/97 7759 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS AGENCY CASE NUMBER ALJ DATE OF DECISION PUBLISHED DECISION REGISTER CITATION Gloria J. Butler v DHR. Division of Facility Services 96 DHR 2113 West 01/31/97 Certificate of Need Section Nash Hospitals. Inc. V DHR, Div/Facility Services, Cert, of Need Sect. 95 DHR 1176** Phipps 05/23/96 Pitt Cty Mem. Hospital. Inc. v. DHR. Div/Facility Svcs. Cert/Need Sect. 95 DHR 1177*' Phipps 05/23/96 Tar Heel Home Health. Inc v. DHR, Div/Facility Svcs, Cert/Need Sect. 96 DHR 0513 Morrison 01/22/97 1 1 ;06 NCR 389 11:06 NCR 389 11;22 NCR 1761 Group Care Licensure Section Alex L. McCall v DHR, Div/Facility Svcs, Group Care Licensure Sec. DHR. Facility Services. Group Care Licensure Sect. v. Petrova Evans Leola Barnes. Shaw Family Care v. DHR. Fac. Svcs, Group Care Lie Gracelane Rest Home v. Group Care Lie. Section, Div. of Soc. Svcs. Medical Facilities Licensure Section 95 DHR 1456 Smith 03/26/96 96 DHR 0544 Phipps 08/21/96 96 DHR 0626 West 10/01/96 96 DHR 0944 Becton 10/16/96 Deborah Reddick v. Department of Human Resources Stacey Yvette Franklin v. Facility Services, Medical Facilities Lie. Sec Division of Medical Assistance 96 DHR 0240 96 DHR 0358 Judy Malcuit, Re Melissa Malcuit v DHR, Div. of Medical Assistance 96 DHR 0129 Durham Reg. Hsptl, Behavioral Hlth Svcs v Medical Assistance, DHR 96 DHR 0637 Jerry Heath v DHR, Division of Medical Assistance 96 DHR 0752 Division of Social Services Cryslean Fields v. Department of Human Resources Rozena Chambliss v. Department of Human Resources Addie & Major Short v. Department of Human Resources Mr. and Mrs. Jessie Stevenson v. DHR. Division of Social Services William G. Fisher v. DHR, Div. of Social Services. Prog Integrity Branch95 Verna F Nunn v. Department of Human Resources Nancy Hooker. Helen Tyndall v Department of Human Resources Monica Ferrari and Justin Ferrari v. Pender County DSS Monica Ferrari and Justin Ferrari v. New Hanover County DSS Reilly Morrison 06/18/96 05/16/96 Gray 06/12/96 West 09/20/96 Chess 10/07/96 95 DHR 1001 Gray 07/05/96 95 DHR 1044 Smith 03/12/96 95 DHR 1063 Morrison 03/19/96 95 DHR 1072 Phipps 03/15/96 95 DHR 1234 Morrison 03/19/96 95 DHR 1330 Gray 04/11/96 96 DHR 0155 Gray 04/26/96 96 DHR 1425 Morrison 12/13/96 96 DHR 1471 Morrison 12/13/96 Child Support Enforcement Section Donald E Rideout Jr v Department of Human Resources Christopher F Roakes v Department of Human Resources Claude Eure Jr. v Department of Human Resources Richard R. Fox. Sr. v. Department of Human Resources Joselito D. Pilar v. Department of Human Resources David Lee Grady v. Department of Human Resources Patrick Orlando Crump v Department of Human Resources Peter Robert Kovolsky v. Department of Human Resources Tony Lee Zapata v Department of Human Resources Lawrence Dow Dean v. Department of Human Resources Carl E. Coffey v. Department of Human Resources Keith Dewayne Senters v. Department of Human Resources Lonnie Dawes v Department of Human Resources Mickey Turner v. Department of Human Resources James Joseph Gallagher v. Department of Human Resources James Thomas McRac v. Department of Human Resources Vincent E. Koehler v. Department of Human Resources David J. Moseley v. Department of Human Resources Derrick L. Conyers v. Department of Human Resources Charles Edward Smith v. Department of Human Resources Kevin Vereen v. Department of Human Resources James Curtis Witwer v Department of Human Resources Thornell Bowden v. Department of Human Resources Herbert W Donahue Jr. v Department of Human Resources Henry S. Sada v. Department of Human Resources Charles F. Moore v. Department of Human Resources Daniel Leslie Baker v. Department of Human Resources Kenneth L. Lindsey v. Department of Human Resources 95 CSE 0952 Reilly 04/18/96 95 CSE 1131 Becton 05/03/96 95 CSE 1155 Phipps 06/12/96 95 CSE 1169 Becton 03/19/96 95 CSE 1180 Chess 03/01/96 95 CSE 1218 Morrison 03/26/96 95 CSE 1221 Smith 03/05/96 95 CSE 1230 Becton 03/11/96 95 CSE 1266 Gray 05/02/96 95 CSE 1267 Morrison 03/29/96 95 CSE 1270 Smith 03/15/96 95 CSE 1273 Phipps 04/01/96 95 CSE 1274 Smith 06/12/96 95 CSE 1278 Smith 03/14/96 95 CSE 1280 Chess 03/19/96 95 CSE 1296 Chess 03/15/96 95 CSE 1301 Phipps 05/09/96 95 CSE 1304 Chess 03/29/96 95 CSE 1308 Reilly 03/13/96 95 CSE 1309 West 03/07/96 95 CSE 1315 Phipps 05/06/96 95 CSE 1331 Becton 03/26/96 95 CSE 1345 Morrison 03/07/96 95 CSE 1346 Reilly 11/15/96 95 CSE 1367 Smith 03/21/96 95 CSE 1369 Chess 03/27/96 95 CSE 1373 Morrison 03/12/96 95 CSE 1375 West 06/24/96 11:23 NORTH CAROLINA REGISTER March 3, 1997 1790 CONTESTED CASE DECISIONS AGENCY John L. Pike v Deparimeni of Human Resources Wm. R. Evans v. Departmenl of Human Resources Rory J- Curry v. Department of Human Resources Lorin A. Brown v. Department of Human Resources Marcus Anthony Butts v Department of Human Resources Cynthia Pmder v. Department of Human Resources Rhonnie J, Williams v. Department of Human Resources Ramon Domenech v. Department of Human Resources Lennard J. Watson v. Department of Human Resources Timothy R Brewer. Sr. v. Department of Human Resources Dennis L. McNeill v. Department of Human Resources Tony A Rogers v Department of Human Resources Rick E. Atkins v. Department of Human Resources Timothy A. Ratley (Jeanes) v. Department of Human Resources Richard E, Reader v. Department of Human Resources Wendel McDonald v. Department of Human Resources Wilbur Dewayne Bault v Department of Human Resources Reginald B. Bratton Sr. v Department of Human Resources James C Smith v. Department of Human Resources Ronald D. Johnson v Department of Human Resources Johnny Leary v. Department of Human Resources Jimmy Strickland v Department of Human Resources John W Scott V. Department of Human Resources Calvin S. Austin v. Department of Human Resources Derek Henslee v. Department of Human Resources Donald L, Carr, Jr. v. Department of Human Resources Norman Waycaster v. Department of Human Resources Andre Duncan v. Department of Human Resources Lorenzo Wilson v. Department of Human Resources Mark Kevin Burns v. Department of Human Resources Cyril Lloyd Payne v. Department of Human Resources Charles H Johnson v. Department of Human Resources Willie James Myers v. Department of Human Resources Christopher F Byrne v Department of Human Resources Richard Painall Burch v. Department of Human Resources Charles Gillispie v Department of Human Resources Teresa Reynolds v. Department of Human Resources Thornell Bowden v Department of Human Resources Kenneth Edward Burns v. Department of Human Resources Carl R. Ritter v. Department of Human Resources William Charles Rorie v. Department of Human Resources Leon Gibson v. Departmenl of Human Resources Dioni Delvalle, U v Department of Human Resources Gerald Roger Beachum Jr. v. Department of Human Resources Anderson L Wardlow v. Department of Human Resources Daniel J. Carter v. Department of Human Resources Kelvin Tarlton v Department of Human Resources Steven Craig Mooney v. Department of Human Resources John L. Cherry Jr. v. Department of Human Resources Arthur Jemerson v. Department of Human Resources Michael S. Covington v. Departmenl of Human Resources Gary Steele v. Department of Human Resources Terry Sealey v. Department of Human Resources Jackie L. Kopczick v. Department of Human Resources Virginia McDowell Ramsey v. Department of Human Resources D. Wayne Gray v. Department of Human Resources Claude R. Anderson v. Department of Human Resources Alan Kendell Locklear v. Department of Human Resources Douglas F. McBryde v. Department of Human Resources Thomas White v. Department of Human Resources James Trevor Emerson v. Department of Human Resources Ray Davis Hood v. Department of Human Resources Leon McNair v. Department of Human Resources John William White v. Department of Human Resources Hazel L. Walker v. Department of Human Resources Tayloria Y. Manns v. Department of Human Resources Carl S. McNair v. Department of Human Resources David Agurs v. Department of Human Resources CASE DATE OF NUMBER ALJ DECISION 95 CSE 1376 Smith 03/21/96 95 CSE 1377 Becton 03/11/96 95 CSE 1380 Mann 03/15/96 95 CSE 1382 Reilly 04/18/96 95 CSE 1405 Smith 03/27/96 95 CSE 1406 Becton 03/11/96 95 CSE 1407 Chess 05/06/96 95 CSE 1408 Phipps 03/11/96 95 CSE 1414 Mann 08/23/96 95 CSE 1433 West 12/10/96 95 CSE 1435 Becton 03/13/96 95 CSE 1436 Chess 05/16/96 95 CSE 1437 Phipps 04/01/96 95 CSE 1465 Morrison 03/26/96 95 CSE 1469 Smith 04/29/96 95 CSE 1470 Becton 07/29/96 95 CSE 1475 West 03/13/96 96 CSE 0002 Mann 08/23/96 96 CSE 0034 Gray 05/10/96 96 CSE 0084 Smith 03/27/96 96 CSE 0085 Becton 05/03/96 96 CSE 0119 Chess 07/08/96 96 CSE 0130 Mann 03/15/96 96 CSE 0140 Phipps 05/17/96 96 CSE 0188 Reilly 05/17/96 96 CSE 0200 West 05/30/96 96 CSE 0245 Becton 05/16/96 96 CSE 0249 Chess 09/25/96 96 CSE 0257 Phipps 05/06/96 96 CSE 0271 Morrison 06/24/96 96 CSE 0272 Reilly 05/31/96 96 CSE 0295 West 07/15/96 96 CSE 0299 Becton 07/19/96 96 CSE 0336 Chess 06/26/96 96 CSE 0339 Phipps 06/27/96 96 CSE 0365 Mann 07/23 '96 96 CSE 0369 Gray 07/23/96 96 CSE 0370 Morrison 05/17/96 96 CSE 0379 Reilly 07/18/96 96 CSE 0380 West 05/08/96 96 CSE 0388 Smith 08/01/96 96 CSE 0389 Becton 07/02/96 96 CSE 0407 Chess 07/17/96 96 CSE 0411 Phipps 06/24/96 96 CSE 0412 Mann 08/05/96 96 CSE 0417 Gray 06/24/96 96 CSE 0424 Morrison 05/29/96 96 CSE 0425 Reilly 07/08/96 96 CSE 0426 West 06/24/96 96 CSE 0427 Smith 08/01/96 96 CSE 0428 Becton 08/02/96 96 CSE 0429 Chess 08/26/96 96 CSE 0430 Phipps 05/29/96 96 CSE 0431 Mann 06/05/96 96 CSE 0464 Gray 08/02/96 96 CSE 0465 Morrison 08/02/96 96 CSE 0502 Reilly 07/22/96 96 CSE 0503 West 05/30/96 96 CSE 0518 Becton 08/19/96 96 CSE 0519 Chess 08/29/96 96 CSE 0545 Phipps 07/25/96 96 CSE 0547 Mann 09/12/96 96 CSE 0557 Morrison 08/08/96 96 CSE 0558 Reilly 08/14/96 96 CSE 0559 West 06/24/96 96 CSE 0564 Smith 08/15/96 96 CSE 0568 Becton 06/24/96 96 CSE 0580 Chess 06/13/96 PUBLISHED DECISION REGISTER CITATION 1791 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS AGENCY King Sanders Jr. v. Department of Human Resources Sandra Kay Carpenter v Department of Human Resources Christopher Clyde Barrino Jr. v. Department of Human Resources Clinton Sutton v Department of Human Resources Dave L James v Department of Human Resources Jonathan Bernard Copper v. Department of Human Resources Stanley Lewis Turner v. Department of Human Resources Lisa Privette v Department of Human Resources Franklin D. Deese v. Department of Human Resources Jan Smith Osborne v Department of Human Resources Mark Allen Rose Sr. v. Department of Human Resources Mark P. Crosby v. Department of Human Resources Bernard D. Brothers v Department of Human Resources Renee G. Arriola v. Department of Human Resources Isaac Massey Jr. v Department of Human Resources Darryl Leon White v. Department of Human Resources Philip Purnell v. Department of Human Resources Edwin Southards v Department of Human Resources Mary Vanover v. Department of Human Resources Cabot S. Pollard v Department of Human Resources Johnnie B. Walton v. Department of Human Resources Timothy P. Ruth v Department of Human Resources Thomas Lee Glenn v. Department of Human Resources William S. Freeman v. Department of Human Resources James Benson v Cumberland Child Support Enforcement Randy Dale Finnicum v. Department of Human Resources William A. Cotton v. Department of Human Resources Winston B. Scott v Department of Human Resources Michael R. Bryant v. Department of Human Resources Dallas F Butler v. Department of Human Resources Robert James Moore Junior v. Department of Human Resources Washington J. James, in v. Department of Human Resources Leslie E. Little v Department of Human Resources David W Thompson v. Department of Human Resources Jimmie Lee Jones v. Department of Human Resources Michael Sturdivant v. Department of Human Resources Tommy R Thompson v. Department of Human Resources Julian L Barrett v Department of Human Resources Richard A. Patton Jr. v. Department of Human Resources Kenneth R. Blount v. Department of Human Resources Anthony Bernard Crawford v. Department of Human Resources Russell Pearson v. Department of Human Resources Harry J Cook v. Department of Human Resources Donald (Glendon) Ryan v. Department of Human Resources Joseph Davis v Department of Human Resources Jethero Davidson Jr v Department of Human Resources Garry G. Hickman v. Departmtne of Human Resoruces Jeffrey Len Ezzell v. Department of Human Resources Tessa Jones v. Department of Human Resources Wilbert J. Boykin v. Department of Human Resources Wayne R. Frazier v. Department of Human Resources Raymond G. Molina v. Department of Human Resources Robert R. Pray v. Department of Human Resources Marion A. Ward v. Department of Human Resources Lee G. Sanders Jr v. Department of Human Resources Robin G Staten v Department of Human Resources Edward F. Murphy v. Department of Human Resources Ken Lail v. Department of Human Resources Robert A. Green v. Department of Human Resources Michael Roddy v. Department of Human Resources Charlie Thomas Smith v. Department of Human Resources Clarence Stevenson. Jr. v. Department of Human Resourcs Federico R. Alire v Department of Human Resources Walter Love v. Department of Human Resourcees William D. Wall v. Child Support Enforcement S alvatore Mitchell Dichiera v. Department of Human Resources Billy C Cummings v. Department of Human Resources Randy Earl Richardson v. Northampton County Dept. of Social Services CASE DATE OF NUMBER ALJ DECISION 96CSE0581 Phipps 08/22/96 96 CSE 0595 Gray 08/29/96 96 CSE 0603 Morrison 08/26/96 96 CSE 0629 Reilly 08/29/96 96 CSE 0638 West 07/15/96 96 CSE 0642 Phipps 09/03/96 96 CSE 0650 Smith 02/05/97 96 CSE 0651 Becton 09/30/96 96 CSE 0690 Mann 07/23/96 96 CSE 0703 Gray 10/04/96 96 CSE 0732 Morrison 09/30/96 96 CSE 0733 Reilly 09/30/96 96 CSE 0774 Smith 11/13/96 96 CSE 0790 Becton 08/14/96 96 CSE 0844 Phipps 10/25/96 96 CSE 0845 Mann 10/29/96 96 CSE 0878 Phipps 10/25/96 96 CSE 0968 Gray 10/25/96 96 CSE 0981 Morrison 10/24/96 96 CSE 1012 Reilly 10/28/96 96 CSE 1071 Smith 11/14/96 96 CSE 1086 Becton 10/30/96 96 CSE 1170 Reilly 12/10/96 96 CSE 1184 Smith 01/10/97 96 CSE 1187 Phipps 02/06/97 96 CSE 1191 Gray 12/12/96 96 CSE 1212 Morrison 01/10/97 96 CSE 1223 West 02/10/97 96 CSE 1253 Phipps 01/14/97 96 CSE 1261 Phipps 02/06/97 96 CSE 1264 Mann 02/10/97 96 CSE 1276 Chess 11/04/96 96 CSE 1282 Smith 01/10/97 96 CSE 1298 Phipps 02/06/97 96 CSE 1300 Gray 02/07/97 96 CSE 1304 Reilly 02/06/97 96 CSE 1328 Mann 12/10/96 96 CSE 1330 Morrison 02/06/97 96 CSE 1331*" Reilly 02/06/97 96 CSE 1332 West 01/30/97 96 CSE 1333 Smith 11/14/96 96 CSE 1334 Becton 02/06/97 96 CSE 1339 Gray 12/12/96 96 CSE 1344 Becton 01/31/97 96 CSE 1346 Gray 02/18/97 96 CSE 1347 Morrison 11/14/96 96 CSE 1349*" West 02/10/97 96 CSE 1370*" Phipps 02/06/97 96 CSE 1371*" Mann 02/10/97 96 CSE 1375 Morrison 12/10/96 96 CSE 1377 West 02/10/97 96 CSE 1378 Gray 12/12/96 96 CSE 1379 Morrison 01/09/97 96 CSE 1380 Reilly 11/15/96 96 CSE 1400 Smith 02/10/97 96 CSE 1402 Gray 12/12/96 96 CSE 1412 Smith 12/12/96 96 CSE 1432 Becton 02/17/97 96 CSE 1437*'- Gray 12/12/96 96 CSE 1441*=° Smith 02/17/97 96 CSE 1445 Phipps 12/12/96 96 CSE 1457 Morrison 02/18/97 96 CSE 1461 Becton 02/17/97 96 CSE 1464*=' Gray 02/18/97 96 CSE 1472»" Morrison 02/18/97 96 CSE 1474 Smith 01/30/97 96 CSE 1475 Becton 02/17/97 96 CSE 1486 West 01/31/97 PUBLISHED DECISION REGISTER CITATION 11:23 NORTH CAROLINA REGISTER March 3, 1997 1792 CONTESTED CASE DECISIONS AGENCY Mr. Rickey K. Terry v. Child Support Enforcement Agency James McCollough v. Department of Human Resources Mike Oser v. Department of Human Resources Raleigh W. Nickerson v. Guilford County Child Support Enforcement Dennis R Kozee v. Department of Human Resources Mark Owens Frink v. Department of Human Resources Kelvine Lance Thompson v. Department of Human Resources Robert Venice Ragg, Jr. v. Department of Human Resources Larry D- Worthy v Forsyth County Child Support Darryl Wiley v. Child Support Enforcement Christopher A. Abney v. Department of Human Resources Marcus Watkins v, Stanly Cty Department of Social Services Mark PuUlam v. Department of Human Resources James A- Fultz v. Department of Human Resources James B. Miller v. Department of Human Resources E. Burt Davis, Jr. v. Department of Human Resources Mari L Ross v. Department of Human Resources Reginald A. Barnes v. Department of Human Resources Boyce P- Banks v. Guildford County Child Support Enforcent Agency Mark A. Blackburn v. Department of Human Resources Spencer B. Miller v. Department of Human Resources Kilamenjaro C- Clifton v. Department of Human Resources Maria H. Morris v. Carteret County Child Support Agency Jeffrey S- Lerner v. Department of Human Resources James Todd Godfrey v Child Support Dept- of Social Services Spencer L Allen v. Department of Human Resources Gary Lee Heafner Sr. v. Department of Human Resources Billie J- Swain v. Social Services Child Support Jamal D- Wilborne Sr. v Child Support Enforcement & AFDC James Jackson v. Department of Human Resources Jeffrey Dale Grant v. Department of Human Resources Harold Ray Armstrong, Jr. v. Department of Human Resources Joseph J. Dunn v. Department of Human Resources Joseph J. Dunn v. Department of Human Resources Gregory S. Wolbert v. Department of Human Resources Archie Lee Oxendine v. Department of Human Resources Michael Bell v. Department of Human Resources Jerome Maddox v. Department of Human Resources Ramon Domenech v. Department of Human Resources William R. Briggs v. Department of Human Resources Sanford Tyler v Department of Human Resources Phillip L- Lewis V Department of Human Resources John William Vestal Sr. v. Department of Human Resources Charles F. Haag. Jr. v. Department of Human Resources Walter Richardson, Jr v. Department of Human Resources Clifton Huff V. Child Support Enforcement Mecklenburg Scott Sanders v. Department of Human Resources Mark Stephens v. Department of Human Resources Teresa Devalle v. Department of Human Resources Larry Michael Rollins. Jr. v. Department of Human Resources Garry G. Hickman v. Department of Human Resources Richard A Pation Jr. v. Department of Human Resources Kenneth Ray Lowery v. Department of Human Resources Jeffrey Len Ezzell v. Department of Human Resources Jeffrey Len Ezzell v. Department of Human Resources Tessa Jones v. Department of Human Resources Tessa Jones v. Department of Human Resources Ronald Graham Moore v. Department of Human Resources John G Howard, Jr. v. Deparunent of Human Resources Gregory B. Phy v. Department of Human Resources Raymond E. Smith v. Department of Human Resources Robert A. Green v. Department of Human Resources Michael Roddy v. Department of Human Resources Kevin J. Miller v. Department of Human Resources Timothy Schnell v. Department of Human Resources Walter Love v. Department of Human Resources Roger W. Taylor v. Department of Human Resources William D. Wall v. Child Support Enforcement CASE DATE OF NfUMBER ALJ DECISION 96 CSE 1487 Smith 02/06/97 96 CSE 1490 Phipps 01/09/97 96 CSE 1503 Chess 01/24/97 96 CSE 1509 Gray 02/03/97 96 CSE 1518 Becton 01/31/97 96 CSE 1523 Mann 02/10/97 96 CSE 1538 Becton 01/09/97 96 CSE 1545 Chess 01/24/97 96 CSE 1546 Phipps 02/03/97 96 CSE 1547 Mann 02/10/97 96 CSE 1552 Reilly 01/30/97 96 CSE 1553 West 02/04/97 96 CSE 1559 Chess 01/24/97 96 CSE 1560 Phipps 01/30/97 96 CSE 1577 West 02/17/97 96 CSE 1579 Chess 01/28/97 96 CSE 1580 Phipps 01/14/97 96 CSE 1581 Mann 12/10/96 96 CSE 1593 Morrison 02/18/97 96 CSE 1596 Smith 01/30/97 96 CSE 1607 Morrison 01/09/97 96 CSE 1615 Morrison 01/09/97 96 CSE 1618 Smith 01/10/97 96 CSE 1621 Phipps 01/09/97 96 CSE 1669 Mann 02/17/97 96 CSE 1675 Smith 02/17/97 96 CSE 1684 Gray 02/03/97 96 CSE 1732 Smith 02/17/97 96 CSE 1736 Morrison 02/18/97 96 CSE 1739 Smith 02/17/97 96 CSE 1753 Reilly 01/30/97 96 CSE 1763 Gray 02/03/97 96 CSE 1770*" Mann 02/03/97 96 CSE 1771*" Mann 02/03/97 96 CSE 1783 Mann 02/10/97 96 CSE 1797 Morrison 01/30/97 96 CSE 1800 Morrison 01/09/97 96 CSE 1865 Chess 01/28/97 96 CSE 1912 Gray 02/03/97 96 CSE 2021 West 02/17/97 96 CSE 2067 Phipps 02/17/97 96 CRA 1225 Becton 12/18/96 96 CRA 1244 Reilly 12/10/96 96 CRA 1289 Phipps 12/12/96 96 CRA 1302 Morrison 12/10/96 96 CRA 1318 Mann 01/22/97 96 CRA 1320 Morrison 12/12/96 96 CRA 1321 Reilly 12/13/96 96 CRA 1329 Gray 01/13/97 96 CRA 1341 Reilly 01/10/97 96 CRA 1350*" West 02/10/97 96 CRA 1354*'" Reilly 02/06/97 96 CRA 1355 Becton 01/15/97 96 CRA 1368*" Phipps 02/06/97 96 CRA 1369 Phipps 12/12/96 96 CRA 1372 Mann 12/10/96 96 CRA 1373*" Mann 02/10/97 96 CRA 1374 Gray 01/14/97 96 CRA 1386 Reilly 12/13/96 96 CRA 1399 West 11/14/96 96 CRA 1404 West 01/10/97 96 CRA 1436*'- Gray 12/12/96 96 CRA 1442*^ Smith 02/17/97 96 CRA 1443 Becton 01/13/97 96 CRA 1447 Morrison 01/30/97 96 CRA 1465*=' Gray 02/18/97 96 CRA 1478 Mann 01/10/97 96 CRA 1481*" Morrison 02/18/97 PUBLISHED DECISION REGISTER CITATION 1793 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS AGENCY Barbara Renea Caldwell v Cumberland Ciy Child Support Enforcement Lee G. Sanders Jr. v. Department of Human Resources Brian Kevin King v. Department of Human Resources Laura D Prince v Department of Human Resources George D. Bnckell v. Department of Human Resources Kelvine Lance Thompson v- Department of Human Resources Marcus Waikins v. Stanly County Department of Social Services Garry G Hickman v Department of Human Resources David Lynn Jones v. Department of Human Resources Keith W. Phillips v. Cleveland Cty Department of Social Services Judy R Johnson v. Department of Human Resources Levern Blue v. Department of Human Resources Michael E- Kimbril v. Child Support Agency Buncombe County Spencer L. Allen v. Department of Human Resources Tommy Allen Springs v, Forsyth Cty Dept of Social Services David Ray Rowdy v Dept. of Human Resources John E. Gombocs v. Dept. of Human Resources Charles John Widelski v. Department of Human Resources Wayne L. Weeks v. Department of Human Resources Amanda F. Blount v Cumberland Cty Child Support Enforcement Norman Eugene Cameron v. Support Enforcement Fayeiieville David J. Hildebrand v. Department of Human Resouces Debra J. Davis v. Columbus County Dept. Social Service Debra Wade v. Department of Human Resources Casey C. Townsend v. Department of Human Resources Samuel L. Powell v. Department of Human Resources Samual L. Gordon v. Department of Human Resources C- Lee Bartlett v. Department of Human Resources Terence L. McMurray v. Department of Human Resources Melinda S. Tunner v Department of Human Resources Jeanne G. Bishop v. Department of Human Resources Rebecca Beaver v. Department of Human Resources Vivian B. White v. Department of Human Resources Mary R. Mahon v. Department of Human Resources Mary R Mahon v. Department of Human Resources Laura Heidorf v. Department of Human Resources Lois Floyd Barber v. Department of Human Resources La Rue Herring v Department of Human Resources Debra D Hammonds v Department of Human Resources Vickie Osoria v Department of Human Resources Trine P. Bollinger v Department of Human Resources Christie L. Pittman v Department of Human Resources Lorna Sharpe-Ester v. Department of Human Resources CASE DATE OF NUMBER ALJ DECISION 96CRA 1510 Reilly 01/14/97 % CRA 1515 Reilly 01/13/97 96 CRA 1516 West 01/13/97 96 CRA 1517 Smith 01/13/97 96 CRA 1526 Morrison 12/10/96 96 CRA 1537 Becton 12/18/96 96 CRA 1554 West 01/13/97 96 CRA 1563*" West 02/10/97 96 CRA 1565 West 01/13/97 96 CRA 1627 West 01/14/97 96 CRA 1631 Phlpps 01/14/97 96 CRA 1650 West 01/14/97 96 CRA 1666 Smith 01/14/97 96 CRA 1676 Smith 01/14/97 96 CRA 1733 Becton 02/06/97 96 CRA 1751 Gray 02/07/97 96 CRA 1755 Smith 02/10/97 96 CRA 1765 Reilly 02/06/97 96 CRA 1776 Becton 02/06/97 96 CRA 1790 West 02/10/97 96 CRA 1807 Smith 02/06/97 96 CRA 1819 Morrison 02/06/97 96 CRA 1842 Mann 02/10/97 96 CRA 1852 Smith 02/06/97 96 CRA 1856 Mann 02/10/96 96 CRA 1893 West 02/17/96 96 CRA 1919 Gray 02/18/96 96 CRA 1938 Morrison 02/18/96 96 CRA 1946 Morrison 02/18/96 95 DCS 0921 Morrison 05/09/96 95 DCS 0958 West 04/04/96 95 DCS 1114 Reilly 04/26/96 95 DCS 1115 Phipps 06/04/96 95 DCS 1137*'' Chess 06/11/95 95 DCS 1142*" Chess 06/11/96 96 DCS 0065 Reilly 03/22/96 96 DCS 0176 Gray 07/30/96 96 DCS 0298 Gray 11/06/96 96 DCS 0792 Chess 10/08/96 96 DCS 1140 Gray 12/12/96 96 DCS 1353 Smith 12/12/96 96 DCS 1561 Mann 01/27/97 96 DCS 1687 West 02/10/97 PUBLISHED DECISION REGISTER CITATION INSURANCE Carol M. Hall v. Teachers & State Employees Comp. Major Medical Plan 95 INS 1141 Arthur Wayne Dempsey v. Department of Insurance Deborah B Beavers v Teachers & St. Emp Comp Major Med Plan Nadia A. Hakim v. Department of Insurance Kathleen D. Jarvis v. Teachers & St. Emp. Comp. Major Med. Plan Mary Alice Casey v. Department of Insurance Nancy C. Lowe v. Teachers & State Employees Comp Major Med. Plan Phipps 95 INS 1255 Smith 95 INS 1411 Smith 95 INS 1422 Smith 96 INS 0075 Morrison 96 INS 0148 Reilly 96 INS 0726 West 04/01/96 04/22/96 05/10/96 03/26/96 10/16/96 08/14/96 11/20/96 11:05 NCR 308 JUSTICE Wendy Atwood v. Department of Justice (Company Police Program) Deborah K. Torrance v. Company Police Program Administrator John O. Beach v. Alarm Systems Licensing Board Ronald R. Coats v. Alarm Systems Licensing Board 96 DOJ 0111 Chess 08/07/96 96 DOJ 0363 Becton 08/14/96 96 DOJ 1362 West 11/19/96 96 DOJ 1364 Phipps 11/26/96 Education and Training Standards Division Freddie Levern Thompson v Criml. Justice Ed & Training Stds. Comm. 95 DOJ 0731 Shane Douglas Crawford v. Sheriffs' Ed & Training Stds. Comm. 95 DOJ 0943 Charles Henry Daniels v. Criml. Justice Ed. & Training Stds. Comm. 95 DOJ 1070 Valerie Maxine Brewington v. Criml. Justice Ed. & Training Stds. Comm. 95 DOJ 1129 Patricia Josephine Bonanno v. Sheriffs' Ed & Training Stds. Comm. 95 DOJ 1152 Chess 02/29/96 Reilly 05/17/96 West 06/12/96 Smith 04/12/96 Chess 03/25/96 11:23 NORTH CAROLINA REGISTER March 3, 1997 1794 CONTESTED CASE DECISIONS AGENCY Douglas Allan Siuari v Sheriffs' Ed & Training Sids, Comm. Rick M Evoy v. Criminal Justice Ed & Training Sids Comm. Windell Daniels v Criminal Justice Ed- & Training Sids. Comm. Gregory Lee Daughiridge v. Sheriffs' Ed. & Training Stds. Comm. Sherrie Ann Gainey v. Sheriffs' Ed, & Training Sids Comm Stuart Hugh Rogers v. Sheriffs' Ed. & Training Sids Comm Brian Thomas Craven v. Sheriffs' Ed. & Training Stds. Comm. Larry D, Wesion v Sheriffs' Ed & Training Stds. Comm. Carlton Gerald v Criminal Justice Ed. & Training Stds Comm. Ken Montie Oxendine v Criminal Justice Ed. & Training Stds Comm. James Leon Hunt v Criminal Justice Ed. & Training Stds Comm David Kent Knight v. Sheriffs' Ed. & Training Stds Comm. Demetrius Arnez Brown v Criminal Justice Ed. & Training Stds Comm. Claude F. Nunnery v. Sheriffs' Ed & Training Stds. Comm John Charles Maloney v. Sheriffs' Ed. & Training Stds Comm Jimmie L. Cooper v. Sheriffs' Ed. & Training Stds. Comm Jerry Glenn Monette v. Sheriffs' Ed. & Training Stds. Comm. Carlton Gerald v Criminal Justice Ed. & Training Stds Comm. Woodrow Andrew Clark v. Criminal Justice Ed & Training Stds. Comm. Warren Scott Nail v. Criminal Justice Ed & Training Stds Comm Zoriana Lyczkowski v. Sheriffs' Ed. & Training Stds Comm. Philip A Berezik, Jr v Criminal Justice Ed & Training Stds. Comm. George Willie Gilliam v. Sheriffs' Ed. & Training Stds. Comm. George Willie Gilliam v Sheriffs' Ed. & Training Stds Comm. Glenn R Brammer v. Sheriffs' Ed. &. Training Standards Comm. Timothy Wayne Fulford v. Sheriffs' Ed. & Training Stds. Comm. Brent Lee Millsaps v. Sheriffs' Ed & Training Stds Comm James Michael Doe v Criminal Justice Ed. & Training Stds. Comm. Charles M Perry v. Criminal Justice Ed. & Training Stds. Comm. Gregory K. Knox v. Sheriffs' Ed. & Training Stds. Comm. CASE DATE OF PUBLISHED DECISION NUMBER ALJ DECISION REGISTER CITATION 95 DOJ 1 1 89 Morrison 06/06/96 95 DOJ 1235 Chess 03/25/96 95 DOJ 1320 Gray 07/24/96 96 DOJ 0027 Reilly 03/19/96 96 DOJ 0028 Becton 08/09/96 96 DOJ 0029 West 06/18/96 96 DOJ 0036 Gray 07/09/96 96 DOJ 0037 Smith 06/12/96 96 DOJ 0068 Gray 03/26/96 96 DOJ 0071 West 03/28/96 96 DOJ 0077 Phipps 07/25/96 96 DOJ 0115 West 03/28/96 96 DOJ 0138 Becton 08/09/96 96 DOJ 0305 Gray 08/28/96 96 DOJ 0306 Smith 08/16/96 96 DOJ 0352 Morrison 07/12/96 96 DOJ 0420 Morrison 07/26/96 11:10 NCR 874 96 DOJ 0432 Becton 08/07/96 96 DOJ 0515 West 10/07/96 96 DOJ 0576 Becton 08/07/96 96 DOJ 0619 Morrison 10/21/96 96 DOJ 0652 Reilly 11/13/96 96 DOJ 0656 Morrison 08/02/96 96 DOJ 0656 Phipps 01/28/97 96 DOJ 0839 Smith 09/05/96 96 DOJ 0840 Smith 09/16/96 96 DOJ 0841 Chess 09/24/96 96 DOJ 0957 Phipps 12/06/96 96 DOJ 1016 Smith 01/22/97 96 DOJ 1836 Reilly 02/03/97 "" Private Protective Services Board Timothy A. Hawkins v. Private Protective Services Board William F. Combs v. Private Protective Services Board Randy C. Hoyle v Private Protective Services Board Robert A. Gibson v. Private Protective Services Board Jimmy D Matthews v Private Protective Services Board Johnnie Lee King v Private Protective Services Board Charlie C. Brackett v. Private Protective Services Board Thomas R. Harris v. Private Protective Services Board Private Protective Services Board v. Henry E. Byrd. Jr. Larry Boggs v. Private Protective Services Board Private Protective Services Board v Charles T. Mathis Private Protective Services Board v. Ricky C. Mullinax Private Protective Services Board v. Michael A Smith Keith L. Saunders v. Private Protective Services Board 95 DOJ 1419 West 04/12/96 96 DOJ 0022 West 03/22/96 96 DOJ 0024 Smith 06/10/96 96 DOJ 0386 Smith 07/03/96 96 DOJ 0676 Reilly 07/11/96 96 DOJ 0677 Reilly 07/11/96 96 DOJ 0712 Becton 02/03/97 96 DOJ 0761 Reilly 07/11/96 96 DOJ 0796 Mann 08/19/96 96 DOJ 0797 Morrison 10/10/96 96 DOJ 0798 Mann 08/27/96 96 DOJ 0800 Becton 10/04/96 96 DOJ 0801 Becton 10/09/96 96 DOJ 1363 Smith 01/15/97 MEDICAL BOARD Medical Board v. Martin A. Hatcher, M.D. PUBLIC INSTRUCTION 92 BME0510 Gray 06/28/96 11:08 NCR 555 Lavern K. Suggs v NC Board of Education JT S & TS , Parents of EM S. v. Chapel Hill-Carrboro City Schl. Sys. L.O, v. Charlotte-Mecklenburg Board of Education Candyce Ewanda Newsome v. Hertford County Board of Education W, and G.B.. on Behalf of C.B. v. Winston-Salem/Forsyth Cty Schools Zelma J, Hillsman v. NC State Board of Education Cyvonne Rush Bryant v. NC State Board of Education Steve Wright Brown v. State Board of Education Blaise Malveau v Cumberland County Board of Education Blaise Malveau v Cumberland County Board of Education John Barlow v. Watauga County Board of Education Louis Craig Gill v. State Board of Education John L. Archer v Department of Public Instruction Pamela F. Cummings v. Department of Public Instruction 95 EDC 0383 Smith 03/13/96 11:01 NCR 50 95 EDC 1194 Mann 04/12/96 96 EDC 0285 Mann 05/31/96 96 EDC 0344 Chess 05/15/96 96 EDC 0349 Mann 09/03/96 96 EDC 0399 Phipps 01/27/97 11:23 NCR 1808 96 EDC 0591 Becton 09/11/96 96 EDC 0593 Reilly 10/11/96 96 EDC 0613 Chess 08/14/96 96 EDC 0614 Chess 08/14/96 96 EDC 0623 Reilly 07/24/96 96 EDC 0675 Smith 12/18/96 11:20 NCR 1624 96 EDC 0678 Smith 08/02/96 96 EDC 0742 Smith 08/16/96 1795 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS AGENCY CASE >fUMBER ALJ DATE OF DECISION PUBLISHED DECISION REGISTER CITATION Susie Whiiley/Brandon Whitley v. Charlotte-Mecklenburg Bd of Ed. 96 EDC 0964 Chess Michael Wayne Geter v. Charlotte-Mecklenburg School Board 96 EDC 1036 West Ted Louis Raye v. State Board of Education 96 EDC 1055 Morrison Felicia M. Moore v, Charlotte-Mecklenburg Schools & Dept. Public Ins. 96 EDC 1303 Smith STATE PERSONNEL Department of Administration Jimmie A Hughes. Jr. v. Department of Administration 96 OSP 0008 Reilly Jonathan L Fann v Department of Administration, Admin Personnel 96 OSP 0042 Gray Carlton Gerald v. State Capitol Police. Department of Administration 96 OSP 0116 Gray Administrative Office of the Court Ethel R Tyson v. NC Judicial Dept . Administrative Office of the Court 96 OSP 0080 Smith Albemarle Mental Health Center Judy A. Gordon v. Albemarle Mental Health Center Appalachian State University 96 OSP 0354 Janice S. Walton v ASU. Beverly Christian. Joan Critcher, Libby Clawson96 OSP 0055 Janice S. Walton v. Appalachian St University. Claude Cooper. Bill Ragan96 OSP 0062 Janice S. Carroll v Appalachian St University, Claude Cooper. Bill Ragan96 OSP 0063 Theresa Louise Whittington v. Appalachian State University 96 OSP 0350 A & T State University Joey M. Carey v. A & T State University 96 OSP 0393 Caldwell County Blake C Pace v. Caldwell County 96 OSP 0047 Catawba County Mental Health Tonyer J. Ruff v, Catawba County Mental Health 96 OSP 0951 NC Central University Francina Y. Tate v. Chancellor Julius L. Chambers. NC Central Univ. Renee Lynch v. NC Central University Central North Carolina School for the Deaf Felicia S- Milton v. Central North Carolina School for the Deaf 95 OSP 1432 95 OSP 1461 95 OSP 1241 Department of Correction Haydee Craver v Department of Correction. Pender Correctional Inst. Gregory Allen Jones v. Department of Correction. Supt. Bonnie Boyelte Carolyn Cheek v Department of Correction Calvia L. Hill v Department of Correction, McCain Correctional Hospital Alisha Louise Staley v. Randolph Correctional Center Brenda Propst v Foothills Correctional Institution Delon D Solomon v Department of Correction Alisha Louise Staley v, Randolph Correctional Center Ann Williams v. Department of Correction Haydee C Craver v Department of Correction, Christopher Phillips Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark V. Department of Correction Dwight Taylor. Mike Estep. Jackie Boone. Robert Pitman. Jeffery Clark V. Department of Correction Dwight Taylor, Mike Estep. Jackie Boone, Robert Pitman, Jeffery Clark V. Department of Correction Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark Chess West Morrison Becton Smith Smith Chess 09/17/96 09/23/96 01/10/97 11/25/96 07/23/96 05/24/96 04/25/96 03/15/96 10/17/96 West 01/15/97 West 03/13/96 West 03/07/96 Smith 10/09/96 10/10/96 04/01/96 10/22/96 04/22/96 10/03/96 05/17/96 95 OSP 1046 Gray 03/12/96 95 OSP 1290 Phipps 05/14/96 95 OSP 1441 Smith 09/19/96 95 OSP 1460 Gray 05/17/96 96 OSP 0092 Gray 06/03/96 96 OSP 0199 Morrison 04/09/96 96 OSP 0258 West 07/02/96 96 OSP 0261 Morrison 08/05/96 96 OSP 0279 Phipps 10/31/96 96 OSP 0348 Phipps 05/15/96 96 OSP 0372*' Smith 07/05/96 96 OSP 0373*" Smith 07/05/96 96 OSP 0374*« Smith 07/05/96 96 OSP 0375*' Smith 07/05/96 11:15 NCR 1255 11:23 NORTH CAROLINA REGISTER March 3, 1997 1796 CONTESTED CASE DECISIONS AGENCY CASE NUMBER AU DATE OF DECISION PUBLISHED DECISION REGISTER CITATION V. Deparimem of Correction Dwighi Taylor. Mike Estep. Jackie Boone, Robert Pitman, Jeffery Clark V. Department of Correction Rebecca A. Faison v- Department of Correction for Women 96 Calvia L Hill v. Department of Correction. McCain Correctional Hospital 96 Pamela Robinson v Department of Correction 96 James .A Klein v Department of Correction 96 James E Holmes v. Secretary Franklin Freeman (DOC), Parole Comm 96 Tony R Broffman v Department of Correction 96 Mary Hargraves v. Department of Correction Michael S. Doe v. Caswell Center 96 Timothy L. Willis v Caswell Correctional Center 96 Alisha Louise Staley v Randolph Correctional Center 96 Sharon Oxendine v. Department of Correction 96 Larry W. Cole, Sr v Brown Creek Correctional Inst. 96 Martin Tyler Wells. Sr, v. Dept of Correction Sandhill Youth Center 96 Timothy J. Ciscel & Anita K Ciscel v, DOP/Piedmont Corr Inst 96 Charles H. Perry v Department of Correction 96 Craven County Health Department Linda Walker v Craven County Health Department Patricia Kemp v Craven County Health Department Patricia Kemp v Craven County Health Department Department of Crime Control and PubUc Safety Jerry Lee Fields v State Highway Patrol Gene Wells v Crime Control &. Public Safety, State Highway Patrol Hearl Ojtendine v Crime Control & Public Safety, St Highway Patrol Jerry Lee Fields v State Highway Patrol Gene Wells v. Crime Control & Public Safety, State Highway Patrol Peter Mason Griffin v Crime Control & Public Safety, St Hwy Patrol Durham County Health Department Lyila D Stockton v Durham County Health Department 96 DSP 0376" Smith DSP 0383 DSP 0397 DSP 0403 OSP 0434 OSP 0538 OSP 0625 OSP 0691 OSP 0715 OSP 0780 OSP 0999 OSP 1136 OSP 1142 OSP 1149 OSP 1542 Becton Gray Phipps Gray Becton Becton 96 OSP 0674 Phipps West Smith Becton Phipps Chess Chess Reilly 95 OSP 1171*'* Smith 95 OSP 1233»'-' Smith 96 OSP 0324»'* Smith 95 OSP 0176 West 94 OSP 1721 Reilly 09/26/96 96 OSP 0150 Chess 05/08/96 96 OSP 0212 Gray 01/10/97 96 OSP 0759 Smith 12/19/96 East Carolina University Gregory Lapicki v East Carolina University Bela E, Karvaly, PhD. v. ECU Bd. of Trustees, Ch Richard R Eakin Teresa Dail McCaskill v East Carolina University Richard Paul Schneck v. ECU Human Res., Sch. of Med , Psych. Med Employment Security Commission Gene S Baker v Gov James B Hunt. Jr . Ann Q Duncan, Chairman, Employment Security Commission William Herbert Allen v Employment Security Commission Patricia Gary v Employment Security Commission Tonderher Lynch v Emp Security Comm., Austin Quality Foods, Inc Jessie James Thomas. Jr. v Employment Security Commission Department of Environment, Health, and Satural Resources Roberta Ann "Robin" Hood v. Environment. Health, & Natural Resources 95 OSP 0035 Reilly Kathy B Vinson v. Dept. of Environment, Health, & Natural Resources 95 OSP 0203 Gray Donald E. Batts V. Division of Adult Health, EHNR 95 OSP 1071 Smith 07/05/96 10/01/96 08/15/96 12/18/96 10/29/96 02,'07/97 08/29/96 Smith 09/23/96 07/30/96 10; 16/96 10/22/96 02/10/97 01/28/97 01/24/97 01/02/97 01/24/97 01/24/97 01/24/97 94 OSP 1174»'° Gray 08/05/96 95 OSP 0249*' Smith 07/23/96 95 OSP 0697 Smith 10/16/96 95 OSP 0836*'» Gray 08/05/96 95 OSP 1050*' Smith 07/23/96 96 OSP 1309 Gray 12/12/96 07/02/96 04/09/96 09/18/96 10/01/96 09/05/96 93 OSP 0707 Becton 05/16/96 11:05 NCR 300 94 OSP 1688 West 06/11/96 95 OSP 0793 Chess 05/14/96 96 OSP 0275 Chess 05/21/96 96 OSP 1961 Phipps 01/27/97 11:13 NCR 1087 Fayetteville State University William C Neal v. Fayetteville State University 95 OSP 0392 Smith Guilford County Area Mental Health, Developmental Disabilities and Substance Abuse Stuart Klatie v. Guilford Cty Area MH/DD/SAS, St. Per Comm. OSP 95 OSP 1179 Smith 04/22/96 07/19/96 11:10 NCR 865 1797 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS AGENCY CASE NUMBER AU DATE OF DECISION PUBLISHED DECISION REGiyrER CITATION Department of Human Resources Sheila Logan v. Black Mountain Center. Depl. of Human Resources Myron A- Smith v. DHR, Division of Child Development Ophelia Webb v. Edard R. Inman, Dir. Alamance Cty DSS, Alamance Cty DSS. Alamance County, and DHR Peggy Pledger v. Department of Human Resources. Dorothea Dix Hosp. Peggy Pledger v. Department of Human Resources. Dorothea Dix Hosp Peggy Pledger v Department of Human Resources. Dorothea Dix Hosp. Gai! Mane Rodgers Lincoln v DHR, DMH/DD/SAS-Cherry Hosp . Cherry Hospital Cynthia D. Hickman v DHR, Central School for the Deaf Johnny Earl Young v. Unit Head Director of Food & Nutrition Peggy Pledger v. Department of Human Resources, Dorothea Dix Hosp. Mary A- Boogaerts v. Cherry Hospital, Goldsboro, NC Kelvin Parter v Dorothea Dix Hospital Johnny Earl Young v. Unit Head Director of Food & Nutrition Johnny Earl Young v. Unit Head Director of Food & Nutrition Kim A. Bell v. Walter B Jones Alcohol & Drug Abuse Treatment Center Allen J- Wright, Jr. v. Blue Ridge Area Authority Lynn S. Hales v. John Umstead Hospital Deborah Ayala v. DHR/DSS/Child Support Enforcement Jacqueline C. Branch v Division of Facility Services Buncombe County Department of Social Senices Kathy Davis v. Buncombe County Department of Social Services Caswell Center Ramona C Jenkins v Department of Human Resources, Caswell Center Ramona C. Jenkins v. Department of Human Resources, Caswell Center Franklin D. Sutton v. Department of Human Resources, Caswell Center Cumberland County Department of Social Ser\'tces Ruth Fortner v, Cumberland County Department of Social Services 96 OSP 0829 Durham County Department of Social Services Jan E. Smith v, Durham County Department of Social Services 95 OSP 1121 Halifax County Department of Social Ser\ices Clairbel Thomas v. Halifax County DSS & Director, Halifax County DSS 95 OSP 0905 Haywood County Department of Social Services Carol Hubbard v. Haywood County Department of Social Services 95 OSP 1084 Lenoir County Department of Social Ser\ices 95 OSP 0672 Chess 01/24/97 95 OSP 1033 Morrison 11/27/96 96 OSP 0112 Gray 03/13/96 96 OSP 0114*" Gray 11/05/96 96 OSP 0146*" Gray 11/05/96 96 OSP 0147*" Gray 11/05/96 96 OSP 0159 Chess 06/17/96 96 OSP 0191 Becton 09/23/96 96 OSP 0217 Reilly 08/13/96 96 OSP 0241*" Gray 11/05/96 96 OSP 0269 Becton 05/29/96 96 OSP 0294 Chess 08/07/96 96 OSP 0543 Reilly 07/09/96 96 OSP 0590 Reilly 07/09/96 96 OSP 0597 Becton 09/11/96 96 OSP 0665 Reilly 12/20/96 96 OSP 0729 West 10/02/96 96 OSP 1062 Smith 10/29/96 96 OSP 1089 Smith 12/09/96 95 OSP 1487 West Sharron S. Moten v, Lenoir County DSS. Jack B. Jones Felicia Ann Baker v Lenoir County DSS. Jack B. Jones Division of Medical Assistance Harold Wiggins v. Division of Medical Assistance O'Bern- Center 96 OSP 1100 96 OSP 1101 95 OSP 1482 Becton Morrison West Reilly Gray Gray West 08/09/96 89 OSP 0411 Becton 03/26/96 91 OSP 0522 Becton 03/26/96 1 1 :02 NCR 89 94 OSP 0766 Smith 03/21/96 12/02/96 05/24/96 05/29/96 08/30/96 12/06/96 12/12/96 06/11/96 11:06 NCR 395 11:13 NCR 1092 Samuel Geddie v. O'Berry Center Gale Worrells v. Department of Human Resources. O'Berry Center Rockingham County Department of Social Senices Lorretta Lawson v Rockingham County DSS 96 OSP 0414 96 OSP 1011 Morrison Gray 96 OSP 0471 06/13/96 01/09/97 West 11:21 NCR 1699 06/13/96 11.23 NORTH CAROLINA REGISTER March 3, 1997 1798 CONTESTED CASE DECISIONS AGENCY CASE NUMBER AU DATE OF DECISION PUBLISHED DECISION REGISTER CITATION Vance County Department of Social Services Roben Eugene Davis v. Vance County Department of Social Services Wake County Department of Social Services Phylis Gilbert v. Wake County Department of Social Services Wilson County Depanmenl of Social Services Karen R, Davis v Wilson County Department of Social Services Department of Insurance Larry W. Creech v. Department of Insurance Department of Labor Kevin P, Kolbe. Sr v. Department of Labor Sydney Cheryl Sutton v. Department of Labor New Hanover County Board of Health Tabandeh Zand v. New Hanover County Board of Health Pembroke State University Bruce W Hunt v. Pembroke State University Department of Public Instruction Johnny Leak v Public Schools of NC, Dept. of Public Instruction McLennard Jay v. Person County Schools Sandhill Community College Earl Levon Womack v. Sandhill Community College Bd. of Trustees Office of the State Controller Angela M- Terry v. Office of the State Controller North Carolina State University Vernell Mitchell v. North Carolina Cooperative Extension Frederick A. Parmley v. NCSU Public Safety Harvey Lee Clemmons v. North Carolina State University Andrew W. Gholson v. North Carolina State University Tidelarui Mental Health Center Lisa C. Selfridge v Tideland Mental Health Center Department of Transportation Pearlie M Simuel-Johnson v. Department of Transportation Dorothy J- Grays v. Div, of Motor Vehicles. Dept. of Transportation Bobby R. Mayo v Department of Transportation James H- Broyhill v. Department of Transportation Bobby R. Mayo v Department of Transportation Pearlie M. Simuel-Johnson v. Department of Transportation Lisa Ann Lee v. Department of Transportation Melvin Duncan v. Department of Transportation Greg Brown v. Department of Transportation Jesse Wayne Castle v State Highway Maim., Guess Rd., Durham, NC 96 OSP 0157 95 OSP 1238 96 OSP 0394 95 OSP 0631 95 OSP 0968 95 OSP 1211 95 OSP 1035 95 OSP 1288 96 OSP 0861 96 OSP 0862 96 OSP 0573 96 OSP 0402 96 OSP 1144 ReiUy Phipps Chess ReiUy Morrison Phipps Smith Beclon Phipps Phipps Phipps Becton Smith 10/28/96 06/27/96 11/01/96 06/06/96 03/14/96 02/04/97 03/01/96 12/02/96 09/05/96 09/04/96 07/25/96 08/07/96 96 OSP 0132 Gray 05/10/96 96 OSP 1037 Smith 01/14/97 96 OSP 1426 Reilly 01/16/97 96 OSP 1730 Reilly 01/15/97 02/10/97 1 1 :07 NCR 434 11:01 NCR 58 94 OSP 0589-' Gray 03/01/96 94 OSP 1044 Reilly 04/12/96 11:03 NCR 173 95 OSP 0561*" Reilly 01/08/97 95 OSP 0673 Gray 12/02/96 95 OSP 0798*" Reilly 01/08/97 95 OSP 0837*' Gray 03/01/96 95 OSP 1099 Reilly 07/31/96 95 OSP 1462 Morrison 03/08/96 96 OSP 0048 Reilly 05/02/96 96 OSP 0087 Gray 04/15/96 * Consolidated cases 1799 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS AGENCY Archie Brooks v. W. F. Rosser. Depanmeni of Transporiation Jessie L. Allen et al v_ DMV Enforcemem Section Dwighi Odell Graves v. DOT Maintenance. Caswell County R-L. Singleton v Department of Transporiation William Dean Gillenwater v Department of Transportation Stephanie Taylor v. Department of Motor Vehicles Tri-County Mental Health Complex Deborah Heil v, Tn-County Mental Health Complex CASE DATE OF PUBLISHED DECISION NVnVIBER ALT DECISION REGISTER CITATION 96 OSP 0239 Smith 05/17/96 96 OSP 0408 Becton 08/12/96 96 OSP 0616 Morrison 10/24/96 96 OSP 0683 Becton 08/12/96 96 OSP 0684 Gray 12/13/96 96 OSP 0955 Becton 08/29/96 11:13 NCR 1095 95 OSP 1 100 95 OSP 0842 Chess 95 OSP 1060 Morrison 96 OSP 0026 Gray 96 OSP 0151 Chess 96 OSP 0248 Chess 96 OSP 0548 Chess 96 OSP 0977 Phipps 96 OSP 1000 Reilly 96 OSP 1103 Gray 96 OSP 1135 Chess University of North Carolina Pamela B. Edwards v. University of North Carolina at Chapel Hill Keith R. Cameron v. University of North Carolina at Chapel Hill Jerel H. Bonner v School of Nursing UNC at Chapel Hill Bela E. Karvaly. PhD. v. UNC Bd. of Gov., Pres. CD Spangler. Jr Carl E. Whigham v. UNC Hospitals at Chapel Hill J. Scott Spears v Ralph Pederson and UNC-C Nellie Joyce Ferguson v. UNC Physicians & Assoc., Charles Foskey, Dir. Mae Helen Lewis v. UNC Greensboro - Physical Plant Donna M. VanHook v. UNC Hospitals at Chapel Hill Tommie Thompson v. UNCG, Physical Plant Wake County Board of Health Debbie L. Whitley v Env Health Div Wake Cty Dept of Health 96 OSP 1090 Western Carolina University Kristin K. Parkinson v Western Carolina University Winston Salem State University Gejuan Long v. Winston Salem Stale University Rebecca Williams v. Winston Salem State University 96 OSP 0987 96 OSP 0253 96 OSP 0807 STATE TREASURER Donald B. Durham v Teachers' & St. Employees Retirement Sys. Joyce Clyburn v Dept of State Treasurer Retirement Systems Division DEPARTMENT OF TRANSPORTATION 92 DST 1066 96 DST 1087 Smith Smith Becton Gray Smith Chess Smith 03/22/96 06/28/96 06/24/96 03/12/96 05/08/96 06/11/96 08/30/96 10/02/96 10/21/96 01/29/97 01/29/97 09/05/96 10/22/96 01/17/97 01/23/97 07/17/96 10/18/96 11:01 NCR 61 11:09 NCR 810 James E. Phillips v Department of Transportation. Div. of Motor Vehicles96 DOT 1829 UNIVERSITY OF NORTH CAROLINA Reilly 12/10/96 Sylvia Jeffries v. University of NC Hospitals at Chapel Hill James E. Boudwin v. University of NC Hospitals at Chapel Hill Rufus T. Moore Jr. v. UNC Hospital Marcia Spruill v. UNC Hospitals - Patient Accounts Charles E. Houlk v. UNC Hospitals 96 UNC 0067 Gray 04/16/96 96 UNC 0343 Chess 07/22/96 96 UNC 0470 Reilly 08/12/96 96 UNC 0500 Becton 07/10/96 96 UNC 0588 Morrison 08/09/96 11:23 NORTH CAROLINA REGISTER March 3, 1997 1800 CONTESTED CASE DECISIONS STATE OF NORTH CAROLINA COUNTY OF WAKE IN THE OFFICE OF ADMINISTRATIVE HEARINGS 96 ABC 1315 N.C. ALCOHOLIC BEVERAGE CONTROL COMMISSION, Petitioner, V. WARNER ENTERPRISES, LNC. T/A THE CABOOSE 920 YEARGAN ROAD GARNER, NC 27529, Respondent. RECOMMENDED DECISION This contested case was heard before Beecher R. Gray, Administrative Law Judge, in the Office of Administrative Hearings, on January 28, 1997 in Raleigh, North Carolina. For Petitioner; Melissa C. Owens, Esq. APPEARANCES ISSUE Whether the Respondent's employee consumed alcoholic beverages on the licensed premises on March 15, 1996, in violation of ABC Commission Rule 4 NCAC 2S .0212(a). FINPE^GS OF FACT The undersigned Administrative Law Judge finds the following facts: 1 . Respondent holds an on-premise Malt Beverage permit at a business known as The Caboose located at 920 Yeargan Road, Gamer, NC. 2. An administrative hearing for this matter was scheduled for January 28, 1997 by the Office of Administrative Hearings. 3. Both parties were served and received Notice of Hearing by certified mail. Petitioner received Notice of Hearing on December 11, 1996 and Respondent received Notice of Hearing on January 7, 1997. 4. Petitioner appeared through counsel, Melissa C. Owens, at the January 28, 1997 hearing. 5. Respondent failed to appear at the hearing. 6. On January 28, 1997 the Petitioner filed Motion for Sanctions with the Office of Administrative Hearings for failure of the Respondent to appear at the January 28, 1997 administrative hearing. CONCLUSIONS OF LAW Based upon the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following Conclusions of Law: 1. The Office of Administrative Hearings has jurisdiction in this matter. 2. ABC Commission Rule 26 NCAC 03 .0114(a) states in pertinent part: 1801 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS If a party fails to appear at a hearing the Administrative Law Judge may: (1) Find that the allegations of or the issues set out in the notice of hearing or other pleading may be taken as true or deemed proved without further evidence. 3. As the Respondent failed to appear at the January 28, 1997 administrative hearing, the allegations as set out in the Petitioner's petition are deemed proved without further evidence. A copy of the petition is incorporated by reference and attached hereto. RECOMMENDED DECISION Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge grants the Petitioner's Motion for Sanctions and recommends that the ABC Commission suspend the Respondent's ABC permits for 10 days, with the last five (5) days of such suspension to be avoided upon payment of a $500.00 penalty. ORDER It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, NC 27611-7447, in accordance with North Carolina General Statute 150B-36(b). NOTICE The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. § 150B-36(a). The agency is required by G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney on record and to the Office of Administrative Hearings . The agency that will make the final decision in this contested case is the N.C. Alcoholic Beverage Control Commission. This the 28th day of January, 1997. Beecher R. Gray Administrative Law Judge 11:23 NORTH CAROLINA REGISTER March 3, 1997 1802 CONTESTED CASE DECISIONS STATE OF NORTH CAROLINA COUNTY OF DURHAM IN THE OFFICE OF ADMINISTRATIVE HEARINGS 96 DHR 0670 KELLY THOMAS, Petitioner, NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, DIVISION OF FACILITY SERVICES, Respondent. This matter was heard before Brenda B. Becton, Administrative Law Judge, on October 17 and 18, 1996, in Durham, North Carolina. At the conclusion of the hearing, the parties were provided an opportunity to file written post-hearing submissions. APPEARANCES For Petitioner: HOLLOWELL & ASSOCIATES, PA , Raleigh, N.C.; Deborah N. Meyer appearing. For Respondent: Margaret DeLong Martin, Assistant Attorney General, North Carohna Department of Justice, Raleigh, North Carolina. ISSUE Whether Respondent erred in its decision to list adverse findings in the Nurse Aide Registry against the Petitioner on the grounds that: 1) On or about August 15,1995, the Petitioner, a nurse aide, did abuse E.H., a nursing home resident, by pinching and holding the resident's nose while feeding the resident; and 2) On or about August 18, 1995, the Petitioner, a nurse aide, did abuse E.H., a nursing home resident, by repeatedly placing a soiled towel over the resident's face; and 3) On or about August 20, 1995, the Petitioner, a nurse aide, did abuse E.H., a nursing home resident, by placing a towel over the resident's face and by wiping the resident's mouth with a soiled washcloth. STATUTES AND RULES INVOLVED 18 U.S.C. 2510 et seq. N.C. Gen. Stat. §8-97 N.C. Gen. Stat. §15A-286 et seq. N. C. Gen. Stat. §131E-111 (recodified as §131E-255 as of June 21, 1996) N. C. Gen. Stat. §131E-117 N.C. Gen. Stat. §150B-29(a) 10 NCAC 3H .0315 (repealed eff. Jan. 1, 1996) (replaced by 10 NCAC 3H .2207) 10 NCAC 3H .0108 (repealed eff. Jan. 1, 1996) (replaced by 10 NCAC 3H .2001) EXHIBITS 1) The following exhibits offered by the Respondent were received in evidence: Portions of the Agency file concerning this matter - Respondent's Exhibits A 1-10, A 12-28, A 31-34. 1803 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS 2) A copy of Resident E.H.'s Power of Attorney - Respondent's Exhibit E. 3) Excerpts from Videotapes - Respondent's Videotape #106, Respondent's Videotape # 109, Respondent's Videotape #111. FINDINGS OF FACT From official documents in the file, sworn testimony of the witnesses, and other competent and admissible evidence, it is found as a fact that: 1. The Petitioner, Kelly Thomas, was a certified nursing assistant (CNA) working at Joseph F. Coble Health Care Center, at all times relevant to this action. 2. E.H., was a resident of Joseph F. Coble Health Care Center, a nursing facility, at all times relevant to this action. 3. Because of concerns the family of resident E.H. had about the care E.H. was receiving at the nursing facility, Mr. Raymond Luper, grandson of E.H., installed a hidden video camera in E.H.'s room on August 9, 1995. 4. The video camera was located in a clock on the wall across from the foot of the resident's bed. The video picture encompassed a full view of the resident in her bed and of the activities of persons caring for the resident while in her room. Each videotape continuously recorded the activities in E.H.'s room for at least a 24 hour period. 5. Mr. Luper changed the tapes approximately every 24 hours as needed to continuously tape the activities in E.H.'s room. Mr. Luper compared the time on the videotape with the clock in the room after he took each tape out to ensure the accuracy of the date and time depicted on the videotape. Mr. Luper routinely went home and reviewed the tapes the same day or within the next few days from when he removed the tapes from the video recorder. 6. Mr. Luper stored the tapes under his bed at his sister's home imtil he placed them in a lock box at his bank every few weeks. 7. E.H.'s daughter and granddaughter had power of attorney for E.H. at the time the video camera was installed and operating at the facility. The power of attorney provided that the granddaughter had power over E.H.'s personal relationships and affairs. Both E.H.'s daughter and granddaughter were aware of and consented to the hidden camera videotaping of E.H. in her room. They stood outside the room while Mr. Luper installed the camera. E.H.'s granddaughter is also E.H.'s guardian of the person. 8. The videotape excerpts shown in court are from the same videotapes that Mr. Luper obtained from the video camera and reviewed. 9. The videotape excerpts shown in court show the same video pictures that Mr. Johnson, the abuse investigator, reviewed and relied upon as evidence substantiating his findings in May 1996. 10. There is no evidence that the tapes have been altered in any way. 11. Most of Petitioner's activities while caring for E.H. are visible on the video tapes. 12. The videotape recording device used in this case had no microphone attached and was not capable of recording sound while in use in the 24 hour recording mode that was used. The videotape recording device did not intercept or acquire the contents of any audio or oral communication in any maimer. The videotapes obtained were obtained as a result of silent video surveillance. 13. On August 15, 1995, Petitioner was videotaped while feeding E.H. 14. On August 15, 1995 at approximately 7:50 a.m.. Petitioner used her left hand to hold E.H.'s nose for approximately 7 seconds while she spoon fed E.H. with her right hand. E.H. reacted by raising her hand and grabbing the 11:23 NORTH CAROLINA REGISTER March 3, 1997 1804 CONTESTED CASE DECISIONS hand that Petitioner was feeding her with. Approximately one minute later, Petitioner again held E.H.'s nose for approximately 7 seconds while she gave E.H. a drink from a cup. E.H. again reacted by raising her hand to remove the cup from her mouth. 15. Petitioner testified that she held E.H.'s in order to get her to eat or drink. She further testified that E.H. sometimes resisted eating, but after she had tasted what she was being offered, E.H. would sometimes continue eating. Petitioner did not intend to harm E.H. by holding her nose, she was merely using a technique that her mother had used on her when she little to try to get E.H. to eat. Petitioner testified that she knew E.H.'s family would be upset if they knew E.H. was not eating. 16. On August 18. 1995, Petitioner was videotaped while giving E.H. a bed bath. 17. On August 18, 1995, at approximately 9:17 a.m., while Petitioner was giving E.H. a bed bath. Petitioner put a bath towel over E.H.'s face for 1 minute and 17 seconds while she continued to wash the resident. Petitioner then appears to use the same towel to di^' E.H.'s lower body. Thereafter, Petitioner tosses a towel over E.H.'s face for approximately 2 minutes. Petitioner then used the same towel to dry the resident's perineal area. Thereafter, Petitioner again appean to toss the same towel over the resident's face for almost 2 minutes. Petitioner then took the towel off of E.H.'s face, completed the bath and left the room. Each time the towel was put over her face, E.H. reacted by raising her hand toward her face and the towel. Each time. Petitioner pushed E.H.'s hand away. Petitioner testified that the reason she covered E.H.'s face because was E.H. was coughing and she was concerned that she could catch whatever E.H. had. 18. On August 20, 1995, Petitioner was again videotaped while giving E.H. a bed bath. 19. On August 20, 1995, at approximately 11:03 a.m., Petitioner held a bath towel over E.H.'s face with her hand for approximately 4 seconds while she was washing the resident. The towel covered the resident's eyes, nose, and mouth. Thereafter, Petitioner used a wash cloth to wash the resident's perineal area and feet. She then wiped the resident's mouth. Petitioner testified that there was more than one washcloth in the wash basin. It is not clear from the videotape whether Petitioner used the same washcloth she had used to wash other parts of E.H.'s body to wipe E.H.'s mouth. 20. On Sunday afternoon, August 20, 1995, Mr. Luper reviewed the videotapes taken in E.H.'s room on August 18th, 19th and 20th. 21. The next day, on August 21, 1995, Mr. Luper, notified the nursing facility about the manner in which Petitioner had bathed his grandmother. 22. On September 11, 1995, Joseph F. Coble Health Care Center notified the Department of Facility Services that there had been an allegation that Petitioner had abused resident E.H. by repeatedly placing a soiled towel and wash cloth over the resident's nose and mouth. 23. Charles Johnson, an abuse investigator for Respondent, was assigned to investigate the allegation. Mr. Johnson conducted an on-site investigation of this incident over several days in December 1995. He spoke with facility staff and interviewed Mr. Luper. He reviewed the medical records of E.H. and personally observed E.H. Mr. Johnson made telephone and written attempts to contact Petitioner, but received no response from Petitioner. 24. When Mr. Johnson interviewed Mr. Luper, and for several months thereafter, Mr. Luper would not disclose to Mr. Johnson his physical whereabouts with respect to observing Petitioner caring for E.H. Mr. Johnson did not complete his investigation of the allegations against Petitioner until May 1996 at which time he learned of the videotapes and was able to personally review the tapes. Upon completing his investigation, Mr. Johnson recommended that Respondent substantiate three allegations of abuse against Petitioner. Respondent accepted Mr. Johnson's recommendation. 25. By certified letter dated May 28. 1996, and received by the Petitioner on May 30, 1996, Respondent notified Petitioner that an investigation of patient abuse by the Petitioner had been concluded and that documentation regarding substantiation of three incidents of patient abuse would be entered into the State Nurse Aide Registry. Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following: 1805 NORTH CAROLINA REGISTER March 3, 1997 11:23 CONTESTED CASE DECISIONS CONCLUSIONS OF LAW 1. The North Carolina Department of Human Resources is required by N.C. Gen. Stat. §131E-255 (formerly N. C. Gen. Stat. §131E-111) to maintain a registry containing the names of all nurse aides working in nursing facilities in North Carolina. The Department must include in the Registry any findings by the Department of abuse of a resident in a nursing facility by a nurse aide. 2. The definition of abuse applicable to these incidents occurring in August 1995, is the following: "Abuse" means the willful infliction of physical pain, injury, mental anguish or unreasonable confinement which may cause or result in temporary or permanent mental or physical injury, pain, harm, or death. Abuse includes, but is not limited to, the following: (c) Physical abuse - hitting, slapping, kicking or corporeal punishment of a patient; (d) Mental abuse - language or treatment which would be viewed by a reasonable person as involving humiliation, harassment, threats of punishment or deprivation of a patient; 10 NCAC 3H .0108 (repealed eff. Jan. 1, 1996) (replaced by 10 NCAC 3H .2001). 3. The Joseph F. Coble Health Care Center in Durham, North Carolina is a nursing facility. 4. The videotapes of Petitioner bathing and feeding E.H. were properly authenticated pursuant to Rule 901 of the North Carolina Rules of Evidence. A proper foundation was laid for the admission of the videotapes as substantive evidence based upon the testimony of Mr. Luper that he had installed the video camera; that it was working properly at the time that the videotapes were taken; that he reviewed the videotapes shortly after they were obtained and that the video tapes remain in the same condition and produce the same picmres as they did at that time; that the videotapes have not been edited or altered; that the videotapes fairly and accurately recorded the actual appearance of the area videotaped and that he recognizes Petitioner and E.H. as the individuals observed on the videotapes. See State y\ Caimon , 92 N.C. App. 246, 374 S.E.2d 604 (1988), reversed on other grounds. 326 N.C. 37, 387 S.E.2d 450 (1990). (A proper foundation for the admission of a videotape may be shown by testimony that the pictures introduced at trial were the same as those the witness had inspected immediately after processing or by testimony that the videotape had not been edited and that the picture fairly and accurately recorded the actual appearance of the area videotaped.); See also. State v^ Holder, 331 N.C. 462, 418 S.E.2d 197 (1992) (testimony of persons who listened to a phone tape recording shortly after it was made that they recognized defendant's voice and that the tape played in court was unaltered was sufficient to lay foundation and authenticate telephone recording.) 5. The clarity and visibility of the events videotaped was sufficient to support the admissibility of the videotapes as relevant evidence under Rule 402 of the North Carolina Rules of Evidence. 6. The videotape evidence relied upon by Respondent in this matter is not inadmissible under either Federal or State electronic surveillance laws. Federal and State electronic surveillance laws prohibit the interception and disclosure of wire, oral or electronic communications without the consent of at least one party to the communication. 18 USC §251 1; N.C. Gen. Stat. §15A-287. The videotape evidence in this action did not involve the interception of any wire, oral or electronic commimications as such commimications are defmed imder either Federal or State law. 18 USC §2510; N.C. Gen. Stat. §15A-286. 7. The Federal circuits have routinely held that silent video surveillance is not prohibited by the federal electronic surveillance laws. Thompson y^ Johnson County Community College , 930 F. Supp. 501, 505 (1996). The videotaf)e recording device used in this case had no microphone attached and was not capable of recording sound while in use in the 24 hour recording mode that was used. The videotape recording device did not intercept or acquire the contents of any audio or oral communication in any manner. The videotapes obtained were obtained as a result of silent video surveillance. 8. Even if the videotape recording fell within the definition of an interception covered by Federal or State electronic surveillance laws, which it does not, there would be no violation of either Federal or State law because such interception would have been made with the consent of one party to the communication. The videotapes show Petitioner and E.H. in E.H.'s room at the nursing facility. E.H.'s granddaughter, E.H.'s mother and E.H.'s grandson, Mr. Luper, all were aware of and consented to the videotaping of E.H. on her behalf. E.H.'s granddaughter, Ann Luper Schmitt, had 11:23 NORTH CAROLINA REGISTER March 3, 1997 1806 CONTESTED CASE DECISIONS a general power of attorney for E.H. at all times relevant to this action, including power of attorney for her personal relationships and affairs. Ann Luper Schmitt is now guardian of the person for E.H. Ann Luper Schmitt had the authority to consent to the videotaping of E.H. on behalf of E.H. and did so consent. 9. The security against unreasonable searches and seizures afforded by the Fourth Amendment to the Constimtion of the United States applies solely to governmental action. State y. Peele. 16 N.C. App. 227, 234, 192 S.E.2d 67 (1972), cerL denied 282 N.C. 429, 192 S.E.2d 838 (1972). The Respondent state agency did not participate in, and was not in any way involved in, the videotaping of E.H. at the nursing facility. The videotaping was not done by anyone acting imder color of law. Therefore, no Fourth Amendment search and seizure issue is applicable to this case. Petitioner's Fourth Amendment rights were not violated. 10. With respect to the incident that occurred on August 15, 1995, the evidence fails to support a conclusion that Petitioner willfully inflicted "physical pain, injury, mental anguish or unreasonable confinement which may cause or result in temporary or permanent mental or physical injury, pain, harm, or death." The word "willful" means "something more than an intention to commit the offense . . . [i]t implies committing the offense purposely and designedly in violation of the law." State v. Whittle . 118 N.C. App. 130, 135,454 S.E.2d 688, 691 (1995), citing State v. Stephenson , 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940). While Petitioner admits to holding E.H.'s nose while feeding her, her testimony that she did it in order to get E.H. to eat and not to harm E.H. was believable. Therefore, there is insufficient evidence to substantiate abuse of resident E.H. on August 15, 1995. 11. The Petitioner abused resident E.H. on August 18, 1995 when she repeatedly tossed a towel over E.H.'s face. Petitioner knew or should have known that such actions could cause E.H. mental anguish and possibly physical harm. Petitioner's actions were not motivated by concern for E.H., but rather concern for her own well being. 12. The Petitioner abused resident E.H. on August 20, 1995 when she wiped E.H.'s mouth with the same washcloth she had just used to wash E.H.'s feet and perineal area. Even if Petitioner used a different wash cloth as she contends, it would still be humiliating to have one's mouth washed out with the same water that had been used to clean the rest of one's body. 13. The Respondent did not err in substantiating two of the three findings of alleged abuse by the Petitioner. RECOMMENDED DECISION The North Carolina Department of Human Resources will make the Final Decision in this contested case. It is recommended that the agency adopt the Findings of Fact and Conclusions
Object Description
Description
Title | North Carolina register |
Date | 1997-03-03 |
Description | Vol. 11, issue 23 (March 3, 1997) |
Publisher | Raleigh, N.C. : Office of Administrative Hearings |
Digital Characteristics-A | 92 p.; 4.57 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister19970303.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text |
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NORTH CAROLINA
REGISTER
-sf**- VOLUME 11 • ISSUE 23 • Pages 1778 - 1812
March 3, 1997
IN THIS ISSUE
Environment, Health, and Natural Resources
Human Resources
%)eech & Language Pathologists & Audiologists
Contested Case Decisions
PUBLISHED BY
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The Office cfAdmiuisihna&veHear^^
Rules Division
PO Drawer 27447
Raleigh, NC27611-7447 %v *
Telephone (919) 733-2678 '^^^
Fax (919) 733-3462
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
IN THIS ISSUE
Volume 11, Issue 23
Pages 1778 - 1812
I. IN ADDITION
Environment, Health, and Natural Resources
Wildlife Resources Commission - Proclamation 1778
n. RULE-MAKING PROCEEDINGS
Human Resources
Departmental Rules 1779
Facility Services 1780
Medical Care Commission 1779 - 1780
Licensing Boards
Speech & Language Pathologists & Audiologists . . 1780
March 3, 1997
HI. PROPOSED RULES
Human Resources
Medical Assistance 1781 - 1785
This issue contains documents officially
filed through February 10, 1997.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
PC Drawer 27447
Raleigh, NC 27611-7447
(919) 733-2678
FAX (919) 733-3462
rV. CONTESTED CASE DECISIONS
Index to AU Decisions 1786 - 1800
Text of Selected Decisions
96 ABC 1315 1801 - 1802
96 DHR 0670 1803 - 1807
96 EDC 0399 1808 - 181
1
V. CUMULATIVE EVDEX 1-46
Julian Mann III, Director
James R. Scarcella Sr., Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Teresa Kilpatrick, Editorial Assistant
Jean Shirley, Editorial Assistant
Linda Richardson, Editorial Assistant
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