North Carolina register, April 1986 - June 1998

              The
^ORTH CAROLINA
REGISTER
IN TfflS ISSUE
EXECUTIVE ORDERS
IN ADDITION
Final Decision Letter
PROPOSED RULES
Commerce
Environment, Health, and Natural Resources
Insurance
Public Education
RRC OBJECTIONS
RULES INVALIDATED BY JUDICIAL DECISION
RECEJVED
CONTESTED CASE DECISIONS
JUN 17 1993
ISSUE DATE: June 15, 1993
LAW LIB.RARY
Volume 8 • Issue 6 • Pages 456 - 502
INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMTNTSTRATTVE rODF,
NORTH CAROLINA REGISTER TEMPORARY RULES I
The North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the
General Statutes. All proposed administrative rules and notices of
public hearings filed under G.S. 150B-21.2 must be published in
the Register. The Register will typically comprise approximately
fifty pages per issue of legal text.
State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.
The North Carolina Register is available by yearly subscription
at a cost of one hundred and five dollars (S105.00) for 24 issues.
Individual issues may be purchased for eight dollars (S8.00).
Requests for subscription to the North Carolina Register should
be directed to the Office of Administrative Hearings,
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447.
Under certain emergency conditions, agencies may issue
temporary rules. Within 24 hours of submission to OAH, the
Codifier of Rules must review the agency's written statement of
findings of need for the temporary rule pursuant to the provisions in
G.S. 150B-21.1. If the Codifier determines that the findings meet
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If
the Codifier determines that the findings do not meet the criteria,
the rule is returned to the agency. The agency may supplement its
findings and resubmit the temporary rule for an additional review
or the agency may respond that it will remain with its initial
position. The Codifier, thereafter, will enter the rule into the
NCAC. A temporary rule becomes effective either when the
Codifier of Rules enters the rule in the Code or on the sixth
business day after the agency resubmits the rule without change.
The temporary rule is in effect for the period specified in the rule or
180 days, whichever is less. An agency adopting a temporary rule
must begin rule-making procedures on the permanent rule at the
same time the temporary rule is filed with the Codifier.
ADOPTION AMENDMENT, AND REPEAL OF
RULES
NORTH CAROLINA ADMINISTRATIVE CODE
The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter
150B of the General Statutes.
Any agency intending to adopt, amend, or repeal a rule must
first publish notice of the proposed action in the North Carolina
Register. The notice must include the time and place of the public
hearing (or instructions on how a member of the public ma>' request
a hearing); a statement of procedure for public comments; the text
of the proposed rule or the statement of subject matter; the reason
for the proposed action; a reference to the statutory authority for the
action and the proposed effective date.
Unless a specific statute provides otherwise, at least 15 days
must elapse following publication of the notice in the North
Carolina Register before the agency may conduct the public
hearing and at least 30 days must elapse before the agency can take
action on the proposed rule. An agency may not adopt a rule tliat
differs substantially from the proposed form published as part of
the public notice, until the adopted version has been published in
the North Carolina Register for an additional 30 day comment
period.
When final action is taken, the promulgating agency must file
the rule with the Rules Review Commission (RRC). After approval
by RRC, the adopted rule is filed with the Office of Administrative
Hearmgs (OAH).
A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative
Hearings for publication in the North Carolina Administrative Code
(NCAC).
Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agencv or
before filing with OAH for publication in the NCAC.
The North Carolina Administrative Code (NCAC) is a
compilation and index of the administrative rules of 25 state
agencies and 38 occupational licensing boards. The NCAC
comprises approximately 15,000 letter size, single spaced pages of
material of which approximately 35% of is changed annually.
Compilation and publication of the NCAC is mandated by G.S.
150B-21.18.
The Code is divided into Titles and Chapters. Each state agency
is assigned a separate title which is further broken down by
chapters. Title 21 is designated for occupational licensing boards.
The NCAC is available in two formats.
(1) Single pages may be obtained at a minimum cost of
two dollars and 50 cents (S2.50) for 10 pages or less,
plus fifteen cents (SO. 15) per each additional page.
(2) The full publication consists of 53 volumes, totaling in
excess of 15,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the
full publication including supplements can be
purchased for seven hundred and fifty dollars
(S750.00). Individual volumes may also be purchased
with supplement service. Renewal subscriptions for
supplements to the initial publication are available.
Requests for pages of rules or volumes of the NCAC should be
directed to the Office of Administrative Hearings.
CITATION TO THE NORTH CAROLINA
REGISTER
The North Carolina Register is cited by volume, issue, page
number and date. 1:1 NCR 101-201, April 1, 1986 refers to
Volume 1, Issue 1, pages 101 through 201 of the North Carolina
Register issued on April 1, 1986.
FOR INFORMATION CONTACT: Office of
Administrative Hearings, ATTN: Rules Division, P.O.
Drawer 27447, Raleigh, North Carolma 27611-7447, (919)
733-2678.
I
NORTH
CAROLINA
REGISTER
ISSUE CONTEIVTS
EXECUTIVE ORDERS
Executive Orders 13-16 456
n. IN ADDITION
Voting Rights Act 460
Office of Administrative Hearings
P. O. Drawer 27447
Raleigh, North Carolina 27611-7447
(919) 733-2678
Julian Mann III,
Director
James R. Scarcella Sr.,
Deputy Director
Molly Masich,
Director of APA Services
Staff:
Ruby Creech,
Publications Coordinator
Teresa Kilpatrick,
Editorial Assistant
Jean Shirley,
Editorial Assistant
III. PROPOSED RULES
Commerce
Savings Institutions Division: Savings
Institutions Commission 461
Environment, Health, and
Natural Resources
Departmental Rules 465
Health Services 465
Insurance
Medical Database Commission . . 463
Public Education
Elementary and Secondary 470
IV. RRC OBJECTIONS 476
V. RULES INVALIDATED BY
JUDICIAL DECISION 479
VI. CONTESTED CASE DECISIONS
Index to AU Decisions 480
Text of Selected Decisions
92 OSP 0455 484
VII. CUMULATIVE INDEX 501
NORTH CAROLINA REGISTER
Publication Schedule
(January 1993 - December 1993)
Last Day Earliest Earliest
for Elec- Date for Date for Last Day *Earliest
Issue Last Day tronic Public Adoption to Submit Effective
Date for Filing Filing Hearing by Agency to RRC Date
******* =(<**** if:lfJfJf:lfJfJr *****>!<* ******* ******* *******
01/04/93 12/09/92 12/16/92 01/19/93 02/03/93 02/20/93 04/01/93
01/15/93 12/22/92 12/31/92 01/30/93 02/14/93 02/20/93 04/01/93
02/01/93 01/08/93 01/15/93 02/16/93 03/03/93 03/20/93 05/03/93
02/15/93 01/25/93 02/01/93 03/02/93 03/17/93 03/20/93 05/03/93
03/01/93 02/08/93 02/15/93 03/16/93 03/31/93 04/20/93 06/01/93
03/15/93 02/22/93 03/01/93 03/30/93 04/14/93 04/20/93 06/01/93
04/01/93 03/11/93 03/18/93 04/16/93 05/01/93 05/20/93 07/01/93
04/15/93 03/24/93 03/31/93 04/30/93 05/15/93 05/20/93 07/01/93
05/03/93 04/12/93 04/19/93 05/18/93 06/02/93 06/20/93 08/02/93
05/14/93 04/23/93 04/30/93 05/29/93 06/13/93 06/20/93 08/02/93
06/01/93 05/10/93 05/17/93 06/16/93 07/01/93 07/20/93 09/01/93
06/15/93 05/24/93 06/01/93 06/30/93 07/15/93 07/20/93 09/01/93
07/01/93 06/10/93 06/17/93 07/16/93 07/31/93 08/20/93 10/01/93
07/15/93 06/23/93 06/30/93 07/30/93 08/14/93 08/20/93 10/01/93
08/02/93 07/12/93 07/19/93 08/17/93 09/01/93 09/20/93 11/01/93
08/16/93 07/26/93 08/02/93 08/31/93 09/15/93 09/20/93 11/01/93
09/01/93 08/11/93 08/18/93 09/16/93 10/01/93 10/20/93 12/01/93
09/15/93 08/24/93 08/31/93 09/30/93 10/15/93 10/20/93 12/01/93
10/01/93 09/10/93 09/17/93 10/16/93 10/31/93 11/20/93 01/04/94
10/15/93 09/24/93 10/01/93 10/30/93 11/14/93 11/20/93 01/04/94
11/01/93 10/11/93 10/18/93 11/16/93 12/01/93 12/20/93 02/01/94
11/15/93 10/22/93 10/29/93 11/30/93 12/15/93 12/20/93 02/01/94
12/01/93 11/05/93 11/15/93 12/16/93 12/31/93 01/20/94 03/01/94
12/15/93 11/24/93 12/01/93 12/30/93 01/14/94 01/20/94 03/01/94
* The "Earliest Effective Date" is computed assuming that the agency follows the
publication schedule above, that the Rules Review Commission approves the rule at
the next calendar month meeting after submission, and that RRC delivers the rule to
the Codifter of Rules five (5) business days before the 1st business day of the next
calendar month.
EXECUTIVE ORDERS
EXECUTIVE ORDER NUMBER 13
AMENDING EXECUTIVE ORDER
NUMBER 10, CONCERNING THE
QUALITY LEADERSfflP
AWARDS COUNCIL
By the authority vested in me as Governor by the
laws and constitution of North Carolina, IT IS
ORDERED:
Sections 2 and 3 of Executive Order Number 10
are hereby amended to read:
Section 2. Membership.
1 . The Council shall consist of not more than
thirty members, including:
• • •
By the authority vested in me as Governor by the
laws and Constitution of this State, IT IS OR-DERED:
Section 5 of Executive Order 1 . is hereby amen-ded
to delete subsection (b) (which prohibits a full-time
State employee subject to the Order from
holding any other public employment for compen-sation).
Subsection (c) shall be redesignated (b),
but shall otherwise remain the same.
This Order is effective immediately.
Done in Raleigh, North Carolina, this 20th day
of May, 1993.
EXECUTIVE ORDER NUMBER 15
COORDINATING COMMITTEE ON THE
AMERICANS WITH DISABILITIES ACT
No more than eleven ranking officials of
organizations receiving a Quality Leader-ship
Award ("Award") from the State;
N. A member recommended by the President
Pro Tempore of the Senate.
Section 3. Chair. Terms, and Vacancies.
Those members under subsection (J) above shall
serve three-year terms, which shall start in the
year after winning the Award. The members
under subsections (E), (F), and (N) above shall
serve at the pleasure of the Governor. The Gover-nor
shall fill all vacancies. However, should a
vacancy occur in a seat held by a member recom-mended
by the Lieutenant Governor, the Speaker
of the House, or the President Pro Tempore of the
Senate, the Governor shall fill that vacancy only
after recommendation by the appropriate official.
Tlie Council shall elect its Chair from among its
members
WHEREAS, the Americans with Disabilities Act
("ADA") was enacted by the United States Con-gress
on July 26, 1990, to expand the civil rights
of individuals with disabilities in the areas of
employment, transportation, public accommoda-tions
and communications; and
WHEREAS, the primary objective of the ADA
is to require employers and public service provid-ers
to eliminate barriers, practices, or policies that
may deprive individuals with disabilities of the full
use and enjoyment of public buildings, employ-ment,
transportation, accommodations, and com-munications;
and
WHEREAS, a process for informing state agen-cies
of their responsibilities under the ADA and
alternatives for fulfilling those responsibilities, and
for resolving disputes about those responsibilities,
would assist the State in implementing the ADA;
NOW, THEREFORE, by the authority vested in
me as Governor by the Constitution and laws of
North Carolina, IT IS ORDERED:
This Executive Order shall be effective immedi-ately.
Done in the Capitol City of Raleigh, North
Carolina, this the 20th day of May, 1993.
EXECUTIVE ORDER NUMBER 14
AMENDING EXECUTIVE ORDER 1
CONCERNING THE BOARD OF ETHICS
Section L Establishment
There is hereby established the Coordinating
Committee on the ADA.
Section 2. Purpose
The Committee shall bring representatives from
every state agency together to coordinate each
agency's self-evaluation and compliance planning
under the ADA.
8:6 NORTH CAROLINA REGISTER June 15, 1993 456
EXECUTIVE ORDERS
Each agency shall develop and implement forth-with
its ADA Compliance Plan. Individuals with
disabilities must have full access to public build-ings,
employment, transportation, accommoda-tions,
and communications as soon as possible.
Section 3. Duties
The Committee shall be responsible for the
following:
(a) coordinating agency compliance with the
ADA as it relates to other federal and
state laws and regulations affecting indi-viduals
with disabilities;
(b) informing and advising state agencies
about their obligations and means for
meeting obligations under the ADA such
as self evaluations, job task analyses,
procedures to handle requests for accom-modations,
facility and communications
accessibility, transportation, and dead-lines
for action;
(c) facilitating the adoption and publication
of formal and informal grievance proce-dures
within each agency to promptly and
equitably resolve complaints of agency
noncompliance with the ADA; with
particular emphasis on the use of alterna-tive
means of dispute resolution, includ-ing
settlement negotiations, conciliation,
facilitation. mediation. fact-finding,
hearings, and arbitration, as appropriate
and authorized by law;
(d) supervising the implementation and peri-odic
revision of an ADA Transition Plan
for each agency regarding the removal of
environmental and communication barri-ers
in state facilities, whether owned or
leased;
(e) providing a forum for speakers to inform
the Committee and others in state govern-ment
about developments concerning
acceptable accommodations, cost effec-tiveness
data for equipment and transpor-tation
alternatives, hiring practices and
case law; and
(f) ensuring that its decisions and those of its
member agencies in creating their ADA
Compliance Plans are made with the
input of employees with disabilities or
representatives of organizations which
serve disabled persons.
Section 4. Membership
The following indi\iduals or their designees shall
serve as members of the Committee:
(1) Lieutenant Governor
(2) Secretary of State
(3) Attorney General
(4) State Treasurer
(5) Superintendent of Public Instruction
(6) Commissioner of Insurance
(7) Commissioner of Agriculture
(8) Commissioner of Labor
(9) State Auditor
(10) President Pro Tempore of the Senate
(1 1) Speaker of the House of Representatives
(12) Chief Justice of the Supreme Court of
North Carolina
(13) President of the University of North
Carolina System
(14) President of the System of Community
Colleges
(15) Secretary of Commerce
(16) Secretary of Environment, Health, and
Natural Resources
(17) Secretary of Crime Control and Public
Safety
(18) Secretary of Cultural Resources
(19) Secretary of Human Resources
(20) Secretary of Transportation
(21) Secretary of Correction
(22) Secretary' of Administration
(23) Secretary of Revenue
(24) Director of the Office of State Personnel
Section 5. Chairperson
The Chairperson shall be the Secretary of Ad-ministration
or her designee, who shall serve at the
Governor's pleasure. The Chairperson may
designate smaller subcommittees, divided accord-ing
to expertise, to work on pertinent topics and
report to the full Committee.
Section 6. Meetings
The Committee shall meet not less than quarterly
at the call of the chairperson.
Section 7. Quorum
A simple majority of the members shall consti-tute
a quorum for the purpose of conducting
business.
A vote will require a simple majority of the
members of the Committee present.
Section 8. Reports
(a) The Committee shall prepare a report to the
Governor on or before October 1. 1993, and
annually thereafter.
(b) The Committee shall report quarterly to the
Joint Legislative Commission on Governmental
457 8:6 NORTH CAROLINA REGISTER June 15, 1993
EXECUTIVE ORDERS
Operations.
Section 9. Administration
Members of the Coordinating Committee sliall
receive necessary travel and subsistence expenses
in accordance with the provisions of N.C.G.S.
120-3.1 or 138.5.
The Department of Administration shall provide
administrative and staff support services required
by the Coordinating Committee. While no one
from the Governor's Advocacy Council for Per-sons
with Disabilities (GACPD) shall be a member
of the Committee, GACPD shall provide the
Committee with technical assistance on behalf of
people with disabilities and serve as an information
clearinghouse.
Section 10. Effect on Other Executive Orders
Executive Order Number 179 of the Martin
Administration is hereby rescinded. All other
Executive Orders or portions of Executive Orders
inconsistent herewith are hereby rescinded.
Section 11. Effective Date
TTiis executive order shall be effective immedi-ately.
Done in the Capital City of Raleigh, North
Carolina, this the 20th day of May, 1993.
EXECUTIVE ORDER NUMBER 16
THE GEOGRAPHIC INFORMATION
COORDINATING COUNCIL AND THE
CENTER FOR GEOGRAPHIC
INFORMATION AND ANALYSIS
WHEREAS, geographic information is an impor-tant
strategic resource for the State of North
Carolina;
WHEREAS, increasingly complex decisions,
overlapping governmental responsibilities, and
limited financial resources demand that agencies
work together to develop and utilize geographic
information;
WHEREAS, North Carolina has a history of
effective utilization of geographic information and
geographic information systems ("GIS") technolo-gy
both at the State and Local level;
WHEREAS, geographic information and GIS
technology are now being developed and used by
many agencies and organizations in North Caroli-na;
WHEREAS, geographic information and GIS
technology can only be fully and practically uti-lized
with a statewide focus and cooperative effort;
NOW, THEREFORE, by the authority vested in
me as Governor by the Constitution and laws of
the State of North Carolina, IT IS ORDERED:
Section 1. Establishment.
With the concurrence of the Information Re-source
Management Commission ("IRMC"), there
is hereby reestablished the Geographic Information
Coordinating Council ("Council").
Section 2. Duties.
The Council shall guide the Center for Geo-graphic
Information and Analysis ("CGIA") and
establish the State's direction in the utilization of
geographic information, GIS systems, and other
related technologies. The Council is responsible
for (a) strategic planning, (b) resolution of policy
and technology issues, (c) coordination, direction
and oversight, and (d) advising the Governor, the
Legislature, and the IRMC as to needed directions,
responsibilities, and funding regarding geographic
information. This statewide geographic informa-tion
coordination effort seeks to further coopera-tion
among State, Federal and Local government
agencies; academic institutions; and the private
sector to improve the quality, access, cost-effec-tiveness
and utility of North Carolina's geographic
information and to promote geographic information
as a strategic resource for the State.
Section 3. Center for Geographic Information
and Analysis.
Coordination of geographic information is the
responsibility of the CGIA. This responsibility
includes GIS production and consulting services;
technical support including assistance in planning,
installing, and using GIS systems; a wide variety
of GIS-related training services and education
programs; a clearinghouse for the exchange of
geographic information and services; and staff
support for the Council and its committees. CGIA
reports to the Office of State Planning.
Section 4. Membership.
The Council shall consist of 17 members, or
their designees, as follows:
a) The Secretary of the Department of
Environment, Health, and Natural Re-sources;
b) The Secretary of Transportation;
c) The Secretary of Administration;
8:6 NORTH CAROLINA REGISTER June 15, 1993 458
EXECUTIVE ORDERS
d) The Secretary of Commerce;
e) The Secretary of State;
f) The Commissioner of Agriculture;
g) The Superintendent of Public Instruction;
h) The head of an at-large State agency to
be appointed by the Governor;
i) The State Budget Officer;
j) The State Planning Officer;
k) One representative elected annually from
the State Government User Committee;
1) One representative elected annually from
the Affiliated User Group Committee;
m) One representative employee of a County
Government to be appointed by the Gov-ernor;
n) One representative employee of a Munic-ipal
Government to be appointed by the
Governor;
o) One representative employee of the Fed-eral
Government, who is stationed in
North Carolina, to be appointed by the
Governor;
p) One representative from the Lead Re-gional
Organizations, to be appointed by
the Governor; and
q) One non-government representative in
North Carolina, to be appointed by the
Governor.
The Deputy State Controller for Information
Resource Management shall serve as a non-voting,
ex officio member. The Governor shall appoint a
Chair from among the membership to serve for a
one-year period. Except for members "a-g" and
"i-1" above, each member shall serve three-year
terms.
Section 5. Administration and Expenses.
The Director of CGIA shall be secretary of the
Council and provide staff support as it requires.
Members of the Council shall receive necessary
travel and subsistence expenses as allowed by
North Carolina law.
b) State Mapping Advisory Committee
("SMAC") : The Council shall select the
Chair of SMAC, which shall be orga-nized
and operated in a manner accept-able
to the United States Geological
Survey's ("USGS") National Mapping
Division. Membership shall not be limit-ed.
Members from Federal agencies may
not vote, but the Council, upon recom-mendation
by the SMAC Chair, may
permit other members to vote.
The SMAC shall consolidate statewide
mapping requirements into a single annu-al
report to the USGS; inform the users
of geographic information about the
status of mapping programs and the
availability of map materials from USGS;
and attempt to gain statewide support for
financing cooperative programs with
USGS. The Committee shall also advise
the Council on issues, problems, and
opportunities relating to USGS programs
and information.
c) Affiliated GIS User Group Committee:
Membership shall consist of representa-tives
from Local and Federal govern-ment,
private industry, universities, and
the General Assembly. TTie committee
shall elect its Chair and advise the Coun-cil
on issues, problems, and opportunities
relating to the use of GIS systems.
Section 7. Rescission.
Executive Order 147 of the Martin Administra-tion
is hereby rescinded.
This Order is effective immediately.
Done in the Capital City of Raleigh, this 21st
day of May, 1993.
Section 6. Committees.
The Council may establish work groups as
needed, and shall oversee the following standing
committees:
a) State Government GIS User Committee:
Membership shall consist of representa-tives
from all interested State government
departments. Tlie committee shall elect
its Chair and advise the Council on is-sues,
problems, and opportunities relating
to GIS.
459 8:6 NORTH CAROLINA REGISTER June 15, 1993
IN ADDITION
G.S. 1 20-30. 9H, effective July 16, 1986, requires that all letters and other documents issued by the
Attorney General of the United States in which a final decision is made concerning a "change affecting
voting " under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina Register.
JPT:LLT:TGL:tlb
DJ 166-012-3
93-1099
U.S. Department of Justice
Civil Rights Division
Voting Section
P.O. Box 66128
Washington, D.C. 20035-6128
May 17, 1993
DeWitt F. McCarley, Esq.
City Attorney
P. O. Box 7207
Greenville, North Carolina 27835-7207
Dear Mr. McCarley:
This refers to five annexations (Ordinance Nos. 2558 and 2559 (1992) and 2561, 2562, and 2563
(1993)) and the designation of the annexed areas to election districts for the City of Greenville in Pitt County,
North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965,
as amended, 42 U.S.C. 1973c. We received your submission on March 19, 1993.
The Attorney General does not interpose any objection to the specified changes. However, we note
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent
litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5
(28 C.F.R. 51.41).
Sincerely,
James P. Turner
Acting Assistant Attorney General
Civil Rights Division
By:
Steven H. Rosenbaum
Chief, Voting Section
8:6 NORTH CAROLINA REGISTER June 15, 1993 460
PROPOSED RULES
TITLE 4 - DEPARTMENT OF
COMMERCE
l\otice is hereby given in accordance with G.S.
150B-21.2 that the Savings Institutions Division
intends to amend rule cited as 4 NCAC 16G
.0312.
1 he proposed effective date of this action is
September 1, 1993.
1 he public hearing will be conducted at 10:00
a.m. on July 16, 1993 at the 3rd Floor Hearing
Room. 1110 Navaho Drive, Raleigh, NC 27609.
Jxeason for Proposed Action: To define accept-able
alternative provisions in Plans of Conversion.
i^omment Procedures: Anyone may present
comments at the hearing. Written comments, or
Notice of Intent to make oral comments, shall be
received by the Savings Institutions Division, 1110
Navaho Drive, Suite 301. Raleigh, NC 27609, at
least 24 hours prior to the hearing.
CHAPTER 16 - SAVINGS INSTITUTIONS
DIVISION: SAVINGS INSTITUTIONS
COMMISSION
SUBCHAPTER 16G - MUTUAL TO STOCK
CONVERSIONS
SECTION .0300 - GENERAL PRINCIPLES
FOR CONVERSIONS
.0312 OPTIONAL PROVISIONS IN PLAN
OF COISfVERSION
The plan of conversion may provide any or all of
the following;
(1) That the applicant may commence the
direct community offering or the public
offering, or both, concurrently with or at
any time during the subscription offering.
The subscription offering may be com-menced
concurrently with or at any time
after the mailing to members pursuant to
Rule .0607 of this Subchapter of the
proxy statement authorized for use by the
administrator. The subscription offering
may be closed before the meeting of the
members held to vote on the plan of
conversion, provided that the offer and
sale of capital stock shall be conditioned
upon the approval of the plan of conver-sion
by the members as provided in
Section .0600 of this Subchapter.
(2) That directors, executive officers, and
employees of the converting savings bank
shall receive, without payment, nontrans-ferable
subscription rights to purchase
shares of capital stock, to the extent that
shares are available after satisfying the
subscriptions of eligible account holders,
supplemental eligible account holders,
and voting members provided for under
Paragraphs (2), (4) and (5) of Rule .031
1
of this Section. The shares shall be
allocated among directors, officers, and
employees on an equitable basis such as
by giving weight to length of service,
compensation, and position, subject to the
limitation in Paragraph (7) of Rule .0311
of this Section on the amount of shares
which may be purchased by any person,
associate thereof, or group of affiliated
persons or group of persons otherwise
acting in concert.
(3) That any account holder receiving rights
to purchase stock in the subscription
offering shall also receive, without pay-ment,
nontransferable subscription rights
to purchase up to one percent of the total
offering of shares of capital stock, to the
extent that such shares are available after
satisfying the subscriptions provided for
under Paragraphs (2), (4), and (5) of
Rule .0311 of this Section, subject to
such conditions as may be provided in
the plan of conversion. In the event of
an oversubscription for such additional
shares, the shares available shall be
allocated among the subscribing eligible
account holders, supplemental eligible
account holders, and voting members on
such equitable basis, related to the
amounts of their respective subscriptions,
as may be provided in the plan of conver-sion.
(4) That the applicant may require members
to return by a reasonable date certain a
postage-paid written communication
provided by the applicant requesting
receipt of a subscription offering circular,
or a preliminary or final offering circular
461 8:6 NORTH CAROLINA REGISTER June 15, 1993
PROPOSED RULES
(5)
(6)
(7)
(8)
in an offering pursuant to Paragraph (10)
of this Rule, in order to be entitled to
receive an offering circular from the
applicant; provided, that the subscription
offering or the offering pursuant to Para-graph
(10) of this Rule shall not be
closed until 30 days after the mailing by
the applicant to members of the
postage-paid written communication. If
the subscription offering or the offering
pursuant to Paragraph (10) of this Rule is
not commenced within 45 days after the
meeting of members, any converting
savings bank adopting this optional
provision shall transmit not more than 30
days prior to the commencement of the
subscription offering or the offering
pursuant to Paragraph (10) of this Rule to
each member who had been furnished
with proxy solicitation materials, written
notice of the commencement of the
offering which notice shall state that the
converting savings bank is not required to
furnish an offering circular to a member
unless the member returns by a
reasonable date certain the postage-paid
written communication provided by the
converting savings bank requesting
receipt of an offering circular.
That the applicant may require eligible
account holders and supplemental eligible
account holders who are not voting
members pursuant to Rule .0608 of this
Subchapter to return by a reasonable date
certain a postage-paid written
communication in accordance with the
procedure established in Paragraph (4) of
this Rule.
That any insignificant residue of shares
of the converting savings bank not sold in
the subscription offering or in a public
offering or direct community offering
may be sold in such other manner as
provided in the plan of conversion with
the written consent of the administrator.
That the number of shares which any
person or group of persons affiliated with
each other or otherwise acting in concert
may subscribe for in the subscription
offering may be made subject to a limit
of not less than one percent of the total
offering of the shares.
That any person exercising subscription
rights to purchase capital stock shall be
required to purchase a minimum number
of shares but the aggregate price for any
minimum share purchase shall not exceed
five hundred dollars ($500.00).
(9) That the converted savings bank shall
issue and sell, in lieu of shares of its
capital stock, units of securities
consisting of capital stock and long-term
warrants or other equity securities, in
which event any reference in the
provisions of this Subchapter to capital
stock shall apply to such units of equity
securities unless the context otherwise
requires.
(10) That, instead of a separate subscription
offering, all subscription rights issued in
connection with the conversion shall be
exercisable by delivery of properly
completed and executed order forms to
the underwriters or selling group for the
public offering or pursuant to any other
procedure, subject to the applicant
demonstrating to the administrator the
feasibility of the method of exercising
such right and to such conditions as shall
be provided in the plan of conversion.
(11) That the administrator may approve such
other equitable provisions as necessary to
avert imminent injury to the converting
savings bank.
(12) That the proxy statement required by
Rule .0607 of this Subchapter may be in
summary form, provided:
(a) A statement is made in bold-faced type
on the summary proxy statement that a
more detailed description of the
proposed transaction may be obtained
by returning an attached postage-paid
postcard or other written
communication requesting a
supplemental information statement
which, together with the summary
proxy statement, complies with the
requirements of Form PS contained in
the Application for Conversion.
(b) The date on which the summary proxy
statement is mailed to members will be
deemed the date on which notice is
given for purposes of Rule .0607 of this
Subchapter. Without the prior written
consent of the administrator, the
meeting of members shall not be held
less than 20 days after the date on
which the supplemental information
statement is mailed to requesting members.
(c) The supplemental information statement
8:6 NORTH CAROLINA REGISTER June 15, 1993 462
PROPOSED RULES
required to be furnished to members
pursuant to Subparagraph (a) of this
Paragraph may be combined with Form
OC, if the subscription offering is
commenced concurrently with or during
the proxy solicitation period pursuant to
Paragraph (1) of this Rule,
(d) The form of the summary proxy
statement has been approved by the
administrator.
(13) That, in the event that the converting
institution is establishing a tax-qualified
employee stock ownership plan (ESOP)
for the benefit of its employees, then
notwithstanding the priorities established
under Subparagraphs (2), (4), and (5) of
Rule .0311 of this Section, the plan of
conversion may provide that such ESOP
may purchase up to 10 percent of the
aggregate shares offered in the
conversion prior to offering any shares to
eligible account holders, supplemental
eligible account holders or other voting
members.
(14) That eligible accountholders shall be
divided into two subcategories for
purposes of determining the aggregate
number of shares of conversion stock
allocated to be purchased by such
accountholders in each subcategory:
those whose permanent residence is
within the market area of the converting
institution and those whose permanent
residence is outside the market area of
the converting institution. The plan of
conversion shall provide:
(a) That each eligible accountholder who
resides within the applicant's market
area shall receive nontransferable
subscription rights to purchase a
number of shares based on such
accountholder's qualifying deposit
balance up to the maximum purchase
limitation established pursuant to Rule
031 1(7) of this Section; provided that
the aggregate number of shares of
conversion stock to be allocated for
purchase by eligible accountholders
within the converting institution's
market area shall equal that number of
shares (rounded to the nearest whole
number) determined by multiplying the
total number of shares of stock to be
sold in the offering times a fraction the
numerator of which is the sum of
ib)
£cl
£d}
qualifying deposits held by eligible
accountholders residing inside the
market area and the denominator of
which is the sum of all qualifying
deposits.
TTiat each eligible accountholder who
resides outside the applicant's market
area shall receive nontransferable
subscription rights to purchase a
number of shares based on such
accountholder's qualifying deposit
balance up to the maximum purchase
limitations established pursuant to Rule
.031 1(7) of this Section; provided that
the aggregate number of shares of
conversion stock to be allocated for
purchase by eligible accountholders
outside the converting institution's
market area shall equal that number of
shares (rounded to the nearest whole
number) determined by multiplying the
total number of shares to be sold in the
offering times a fraction the numerator
of which is the sum of qualifying
deposits held by eligible accountholders
residing outside the converting
institution's market area and the
denominator of which is the sum of all
qualifying deposits.
Within each subcategory, a formula to
be used in the event of an
oversubscription for the equitable
allocation of shares of stock within such
subcategory which relates to an eligible
accountholder's qualifying deposit
balance.
For the purposes of this Paragraph, a
converting institution shall define its
"market area" to include each county in
which it has an office and may include
such additional counties contiguous to
those counties in which it maintains an
office (regardless of whether such
counties are in the State of North
Carolina) as it may designate to be part
of its "market area" in its plan of
conversion.
Statutory Authority G.S. 54C-33: 54C-53.
TITLE 11 - DEPARTMENT OF
INSURANCE
iSotice is hereby given in accordance with G.S.
463 8:6 NORTH CAROLINA REGISTER June 15, 1993
PROPOSED RULES
150B-21.2 that the N.C. Medical Database Com-mission
intends to adopt rule cited as 1 1 NCAC 15
.0011.
1 he proposed effective date of this action is
September 1, 1993.
Instructions on How to Demand a Public Hearing
(must be requested in writing within 15 days of
notice): A request for a public hearing must be
made in writing, addressed to Ellen K. Sprenkel,
N. C. Department of Insurance, P. O. Box 26387,
Raleigh, N.C. 27611. This request must be re-ceived
within 15 days of this notice.
MVeason for Proposed Action: To establish fees
for the distribution of data as required by statute.
{comment Procedures: Written comments may be
sent to Jim Hazelrigs, Medical Database Commis-sion,
112 Cox Avenue, Raleigh, N.C. 27605.
Anyone having questions should callJim Hazelrigs
at (919) 733-7141, or Ellen Sprenkel at (919)
733-4529.
CHAPTER 15 - MEDICAL DATABASE
COMMISSION
,0011 FEES AND CHARGES FOR DATA
(a) The fees for the following reports generated
by the Commission are as follows:
$ 15 State and County Profiles of
Hospital Inpatient Utilization
5 30 DRG Utilization and Charges by
Hospital: A Reference Book
$ 15 A Summary Guide to Hospital
Utilization and Charges
$ 10 Primary Payer Summary Statistics
by Hospital
$ 20 Patient Origin Report
$ 20 Hospital Inpatient Surgical Proce-dures
Report
$100 Complete set of the six reports
named in this Paragraph
(h) The fees for the following personal computer
(PC) products generated by the Commission are as
follows:
$375 PCIA: Diskette File of DRG
Utilization and Charges by Hospi-
$750
$375
tal
PCIB: Diskette File of DRG
Utilization and Charges by Hospi-tal
by Payer Category
PC2: Diskette File of Zip Code
Patient Origin by Hospital
(c) Special data requests may be performed by
commission staff based upon specifications devel-oped
for each project. The charges for special
data requests are as follows:
(1) The full costs charged to the Commis-sion
by others involved in completing
the request:
(A) data processing contractor or the State
Data Center;
(B) any consultant or other contractor
involved in the process.
(2) Twenty-five dollars ($25.00) per hour
time of a research analyst or other
member of the Commission staff work-ing
on the project.
(3) A charge for the use of the medium on
which the product will be delivered,
paper at ten cents ($0. 10) per page,
diskettes at two dollars ($2.00) each,
and tape at the current cost to the Com-mission.
(4) A charge for the cost of delivering the
product to the requestor:
(A) Business envelopes at ten cents
($0.10) each. 8^ x 1
1
" envelopes at
seventy-five cents ($0.75) each, and
boxes for mail of bulk materials at
two dollars ($2.00) each.
(B) U.S. Postal Service actual postage
charges.
(C) Express type mail services may be
used, provided the Commission
obtains the account number of the
requestor and charges the special
delivery to the requestor's account.
The Commission will not include this
as part of the invoice for the product.
(d) Materials may be transmitted via facsimile
for one dollar ($1 .00) per page for faxing with a
minimum fax charge of ten dollars ($10.(X)). This
includes faxing to a long distance number in the
continental United States . Faxing to Alaska.
Hawaii, U.S. territories, and foreign countries
shall not be done by the Commission. The
Commission will not fax more than 30 pages of
data.
(e) The Commission shall charge twenty-five
dollars ($25. (X)) for the standard mailing list and
8:6 NORTH CAROLINA REGISTER June 15, 1993 464
PROPOSED RULES
thirty dollars ($30.00) if the mailing list is
formatted to other than standard format at the
request of the purchaser of the list.
(f) The Commission shall charge the proper
sales tax on all materials sold under this Rule.
Statutory Authority G.S. 131E-211(k):
131E-212(b)(7).
TITLE 15 - DEPARTMENT OF
ENVIRONMENT, HEALTH. AND
NATURAL RESOURCES
I\otice is hereby given in accordance with G.S.
150B-21.2 that the Department of Environment,
Health, and Natural Resources intends to amend
rule cited as 15A NCAC IK .0402.
1 he proposed effective date of this action is
October 1. 1993.
1 he public hearing will be conducted at 7:00
p.m. on July 7, 1993 at the Ground Floor Confer-ence
Room. Archdale Building, 512 N. Salisbury
Street. Raleigh, NC.
IXeason for Proposed Action: The Groundwater
Section has found that less financially capable
owners of commercial underground storage tanks
are having great difficulty obtaining loans to
upgrade and replace tanks under the existing rules.
These commercial tank owners are unable to afford
loans under the current interest and term require-ments
of 15A NCAC IK .0402. Underground
storage tanks owned by these individuals account
for a large percentage of the groundwater contami-nation
in the State. These upgrades/replacements
of tanh: are required under Federal and State
technical standards found in 15A NCAC 2N. To
improve access to the Groundwater Protection
Loan Fundfor less financially capable owners, the
proposed amendment to 15A NCAC IK .0402
reduces the fixed interest rate from the New York
Prime Interest Rate plus three to the Nevt' York
Prime Interest Rate on the day of application. The
term of loans is also extended from 120 months to
180 months.
K^omment Procedures: Submit written conunents
by July 16, 1993 to: Mr. Gary Shaver, DEM-Groundwater
Section, 441 N. Harrington Street,
Raleigh, NC 27603. Oral comments may be made
at the public hearing.
tLditor's Note: This Rule was filed as a tempo-rary
rule effective June 1, 1993 for a period of
180 days or until the permanent rule becomes
effective, whichever is sooner.
CHAPTER I - DEPARTMENTAL RULES
SUBCHAPTER IK - GROUNDWATER
PROTECTION LOAN FUND
SECTION .0400 - LOAN CONDITIONS
.0402 INTEREST AND TERM
(a) All loans made in accordance with this
Subchapter shall use a variable fixed interest rate.
The interest rate shall be the New York Prime
Rate, as reported in the Wall Street Journal, pk»
three perc ent, on the day of application. This rate
includes the loan fees specified in Paragraphs (d)
and (e) of Rule .0401 of this Subchapter.
(b) The term of each loan shall not exceed 4-30
180 months.
Statutory Authority G.S. 143-21 5. 94P.
iSotice is hereby given in accordance with G.S.
150B-21. 2 that the EHNR - Commissionfor Health
Services intends to amend rules cited as 15A
NCAC 19B .0301, .0304, .0309 and repeal rules
cited as 15A NCAC 19B .0316 - .0317.
1 he proposed effective date of this action is
October 1, 1993.
1 he public hearing will be conducted at 1:30
p.m. on July 14, 1993 at the Highway Building,
First Floor Auditorium, 1 South Wilmington Street,
Raleigh, North Carolina.
iVeason for Proposed Action:
15A NCAC 19B .0301. .0304 and .0309 - to
change the name ofthe Chemical Tests for Alcohol
Branch to the Forensic Tests for Alcohol Branch.
nis change is due to the new infrared technology
being used rather than chemicals used with the
breathalyzer.
465 8:6 NORTH CAROLINA REGISTER June 15, 1993
PROPOSED RULES
15A NCAC 19B .0316 and .0317 - to update
approved instruments. The Breathalyzer, Model
2000 is no longer in use or being manufactured.
K^omment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley, Department of Justice, P. O. Box 629,
Raleigh, NC 27602-0629. Persons who wish to
speak at the hearing should contact John P.
Barkley at (919) 733-4618. Persons who call in
advance of the hearing will be given priority
depending on the number of people that wish to
speak at the public hearing. Only persons who
have made comments at a public hearing or who
have submitted written comments will be allowed
to speak at the Commission meeting. Comments
made at the Commission meeting must either
clarify previous comments or proposed changes
from staff pursuant to comments made during the
public hearing process.
IT IS VERY IMPORTANT THAT ALL INTERESTED
AND POTENTIALLYAFFECTED PERSONS, GROUPS,
BUSINESSES, ASSOCIATIONS. INSTITUTIONS OR
AGENCIES MAKE THEIR VIEWS AND OPINIONS
KNOWN TO The Commission FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND COMMENT
PROCESS, WHETHER THEY SUPPORT OR OPPOSE
ANY OR ALL PROVISIONS OF THE PROPOSED
RULES. The Commission MAY MAKE CHANGES TO
THE RULES AT ne Commission MEETING IF THE
CHANGES COMPLY WITH G.S. I50B-2I.2(f).
CHAPTER 19 - HEALTH: EPIDEMIOLOGY
SUBCHAPTER 19B - INJURY CONTROL
SECTION .0300 - BREATH ALCOHOL
TEST REGULATIONS
.0301 APPLICATION FOR INITIAL
PERMIT
(a) Application for an initial permit to perform
chemical analysis of a person's breath to determine
his alcohol concentration shall be made in writing
to the Director. The applicant shall have the
endorsement of his appropriate supervising law
enforcement officer, or his designated representa-tive,
unless an exception is granted by the Direc-tor.
The Director shall issue, deny, terminate, and
revoke permits for individuals to perform chemical
analyses.
(b) Permits shall be granted to individuals who:
(1) demonstrate the ability to perform
chemical analyses accurately and reli-ably
in accordance with a method or
methods approved by the Commission;
(2) can satisfactorily explain the method of
operation of the breath-testing instru-ment
for which he is applying for a
permit to operate;
(3) offer satisfactory proof of good charac-ter
to the Director; and
(4) are employed by a law enforcement
agency, the Injury Control Section or
members of its instructional staff, or by
some other federal, state, county or
municipal agency with the responsibility
of administering chemical analyses to
drivers charged with implied consent
offenses.
(c) Individuals successfully completing a mini-mum
number of course hours on chemical forensic
tests for alcohol conducted by the Injury Control
Section shall be deemed to have met the require-ments
of (b) (1) and (2) of this Rule.
Statutory Authority G.S. 20-1 39. 1(b).
.0304 CONDITIONS FOR RENEWAL OF
PERMIT
(a) Permits shall be subject to renewal at expira-tion,
or at such time prior to expiration as is
convenient for the Director, upon demonstration
by the permittee of:
(1) continuing ability to perform accurate
and reliable chemical analyses;
(2) ability to satisfactorily explain the
method of operation of the
breath-testing instrument for which he
is applying for a renewal permit to
operate;
(3) continued employment by a law
enforcement agency, the Injury Control
Section or a member of its instructional
staff, or by some other federal, state,
county or municipal agency with the
responsibility of administering chemical
analyses to drivers charged with
implied consent offenses; and
(4) proof of good character, if desired by
the Director.
(b) Individuals successfully completing a
chemical forensic test for alcohol recertification
course conducted by the Injury Control Section
shall be deemed to have met the requirements of
(a) (1) and (2) of this Rule for the first and
subsequent renewal of permits.
8:6 NORTH CAROLINA REGISTER June 15, 1993 466
PROPOSED RULES
(c) Individuals desiring first and subsequent
renewal permits, after expiration of their permits,
shall successftilly complete the following Injury
Control Section course requirements prior to the
granting of renewal permits, unless an exception is
granted by the Director:
( 1
)
Chemical Forensic Tests for Alcohol
Recertification Course if the permit has
been expired less than six months;
(2) Chemical Forensic Tests for Alcohol
Operators Course if the permit has been
expired six months or longer.
Statutory Authorin- G.S. 20-1 39. 1(b).
.0309 QUALIFICATIONS OF
MAINTENANCE PERSOIVNEL
(a) Preventive maintenance on all breath -testing
instruments shall be performed by a chemical
analyst who has successfully completed the
chemical forensic tests for alcohol technical
supervisor's school or a maintenance course for a
specific instrument, as conducted by the Injury
Control Section, unless an exception is granted by
the Director.
("b) Chemical analysts qualifying under this Rule
shall be granted certificates by the Director
authorizing the performance of preventive
maintenance on specific models of breath-testing
instruments.
(1) Certificates shall be granted for an
indefinite period but shall be valid only
during the period that the chemical
analyst possesses a current valid permit
to perform chemical analyses of the
breath on the specific models of
breath-testing instruments for which
preventive maintenance is being
performed.
(2) Certificates shall be subject to
revocation under the same provisions
specified under Rule .0308 of this
Section for revocation of permits to
perform chemical analyses.
(3) The Director shall have the same
e\'aluation authority over holders of
certificates as he possesses over
permittees under Rule .0307 of this
Section.
Statutory Authorit}- G.S. 20-1 39. 1(h).
.0316 BREATHALYZER: MODEL 2000
The operational procedures to bo followed in
using the Breathalyzer. Model 2000 are:
i-y) Insure obgcrvation period requirements
have been met;
(3) Wbefl
"INSERT TICKET"—appears.
(^
insert test record;
When "READY" appears, push
W-
" START/TEST";
Insure alcoholic breath simulator
thermometer shows—proper—operating
tcmpKjraturc;
(5) Wbefl
"BLOW—SAMPLE"—appears,
connect alcoholic breath simulator and
push "START/TEST";
i€) Wfeefl "ANALYZING" appears.
disconnect alcoholic breath simulator;
t?3 Wfeefl "ANALYSIS COMPLETE"
appears.—insure—instrument—displays
expxKJted results;
i^
m-
When—"BLOW—SAMPLE"—appears.
collect breath sample;
When—"BLOW—SAMPLE"—appears.
collect breath s ample;
{iQj Wfeefl "ANALYSIS COMPLETE"
app>cars. remove test record and record
times and results .
If the alcohol concentrations differ by more than
0.02,—a
—
third—er—subsequent—test—sheH—be
administered as soon as feasible by repeating steps
(1) through (10).
Statutory Authorit}- G.S. 20-1 39. 1(b).
.0317 PREVENTIVE MAINTENANCE:
BREATHALYZER: MODEL 2000
The preventive maintenance procedures for the
Breathalyzer. Model 2000 to be followed at least
once during every 30 days arc:
{4^ When—instrument—displays—"INSERT
TICKET", in sert test record;
(3) Verify' alcoholic breath simulator
thermometer—
s
how
temperature;
s
—
proper—operating
-WiK 'READY' appc
"START/TEST"
When—"BLOW—SAMPLE"—appears
collect breath sample;
When—"BLOW—SAMPLE"—appears,
connect alcoholic breath simulator and
push "START/TEST", disconnect when
"ANALYZE" appears;
m Whefl
—
"BLOW SAMPLE"—appears,
connect alcoholic breath simulator and
push "START/TEST", disconnect when
"ANALYZE" appears;
t^ Whe n "ANALYSIS COMPLETE"
apfXiars, remove test record and record
467 8:6 NORTH CAROLINA REGISTER June 15, 1993
PROPOSED RULES
simulator results;
^8) Verify alcoholic breath simulator solution
i s being changed evcr>' 15 days or after
25 tests, whichever occurs first.
A signed original of the preventive maintenance
checklist shall be kept on file for at least three
years.
Statutory Authority G.S. 20-1 39. 1(b).
ISotice is hereby given in accordance with G.S.
1508-21. 2 that the EHNR - Commission for Health
Services intends to amend rule cited as 15A NCAC
21D .0401.
1 he proposed effective date of this action L
October 1. 1993.
IS
1 he public hearing will be conducted at 1:30
p.m. on July 14, 1993 at the Highway Building,
First Floor Auditorium, 1 South Wilmington Street
,
Raleigh, North Carolina.
iXeason for Proposed Action: To allow the WIC
Program to serve more of the eligible WIC popula-tion.
This change will require all local WIC
agencies to use the full federal income eligibility
limit.
(comment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley, Department of Justice, P. O. Box 629,
Raleigh, NC 27602-0629. Persons who wish to
speak at the hearing should contact John P.
Barkley at (919) 733-4618. Persons who call in
advance of the hearing will be given priority
depending on the number of people that wish to
speak at the public hearing. Only persons who
have made comments at a public hearing or who
have submitted written comments will be allowed
to speak at the Commission meeting. Comments
made at the Commission meeting must either
clarify previous comments or proposed changes
from staff pursuant to comments made during the
public hearing process.
IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS, BUSINESSES,
ASSOCIATIONS, INSTITUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS. WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MA Y MAKE CHANGES TO THE
RULES A T THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH G.S. 15OB-21.20.
CHAPTER 21 - HEALTH:
PERSONAL HEALTH
SUBCHAPTER 21D -
WIC/NUTRITION
SECTION .0400 - ELIGIBILITY FOR WIC
PROGRAM PARTICIPATION
.0401 ELIGIBILITY
(a) In order to be eligible for WIC program
benefits, a person must be:
(1) a pregnant, postpartum or breastfeeding
woman, an infant, or a child up to
his-her fifth birthday;
(2) a resident of the health service delivery
area of the local WIC agency;
(3) income eligible as provided in the local
WIC program plan , that is, her gross
family income shall be equal to or less
than 185% of the poverty income
guidelines issued annually by the U.S.
Department of Health and Human
Services ;
(4) certified at nutritional risk according to
the certification criteria referenced in
Rule .0404 of this Section.
(b) An individual shall be certified as eligible to
receive WIC program benefits when their her
eligibility has been determined and documented by
the local WIC agency.
(c) The certification of nutritional risk shall be
made through a medical and nutritional
assessment, as provided in Rule .0403 of this
Section made by a competent health professional
employed or designated by the local WIC agency.
Authority' G.S. 130A-361; 7 C.F.R. 246.
8:6 NORTH CAROLINA REGISTER June 15, 1993 468
PROPOSED RULES
I\otice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Commission for Health
Services intends to amend rule cited as 15A NCAC
21F .0102.
1 he proposed effective date of this action is
October 1. 1993.
1 he public hearing will be conducted at 1:30
p.m. on July 14, 1993 at the Highway Building,
First Floor Auditorium, 1 South Wilmington Street,
Raleigh, North Carolina.
iVeason for Proposed Action: To include a
definition of low income in the Children 's Special
Health Services Program.
(comment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to John P.
Barkley, Department of Justice, P. O. Box 629,
Raleigh, NC 27602-0629. Persons who wish to
speak at the hearing should contact John P.
Barkley at (919) 733-4618. Persons who call in
advance of the hearing will be given priority
depending on the number of people that wish to
speak at the public hearing. Only persons who
have made comments at a public hearing or who
have submitted written comments will be allowed
to speak at the Commission meeting. Comments
made at the Commission meeting must either
clarify previous comments or proposed changes
from staff pursuant to comments made during the
public hearing process.
IT IS VERY IMPORTANT THAT ALL INTERESTED
AND POTENTIALLYAFFECTED PERSONS, GROUPS,
BUSINESSES, ASSOCIATIONS. INSTITUTIONS OR
AGENCIES MAKE THEIR VIEWS AND OPINIONS
KNOWN TO THE COMMISSION FOR HEALTH
SERVICES THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS. WHETHER THEY SUPPORT
OR OPPOSE ANY OR ALL PROVISIONS OF THE
PROPOSED RULES. THE COMMISSION MAYMAKE
CHANGES TO THE RULES AT THE COMMISSION
MEETING IF THE CHANGES COMPLY WITH G.S.
150B-2L2(f).
CHAPTER 21 - HEALTH: PERSONAL
HEALTH
SUBCHAPTER 21F - CHH^DREN'S
SPECIAL HEALTH SERVICES: CHILDREN
AND YOUTH SECTION
SECTION .0100 - GENERAL PROVISIONS
.0102 DEFINITIONS
The following definitions shall apply throughout
this Subchapter:
(1) "Appliances and equipment" means
wheelchairs, braces, hearing aids,
prostheses, respiratory aids, and similar
items authorized for program patients.
(2) "Augmentative communication aids" are
individually prescribed devices designed
to facilitate communication for
non-verbal individuals. TTiese include,
but are not limited to communication
boards, scanning devices, strip printers,
etc.
(3) "Authorization or authorized service"
means a request for service which has
been approved by Children's Special
Health Services. Authorization is
indicated by the signature of the program
director or his designee on an application
for cost service.
(4) "Cost service" means any service which
requires submission of an application for
approval and payment. These services
include:
(a) medical or surgical care in a hospital or
clinic;
(b) consultation;
(c) appliances and equipment;
(d) medication (see Rule .0408 of this
Subchapter);
(e) physical therapy;
(f) occupational therapy;
(g) speech-language pathology and
audiology services;
(h) dental care limited to that specified in
Rule .0406 of this Subchapter;
(i) physicians' fees;
(j) x-rays and laboratory tests;
(k) psychological services.
(5) "Date of service" is the date that the
approved authorization is to become
effective.
(6) "Encumbrance or encumbered money" is
the money obligated to pay for services
authorized by the Children's Special
Health Services.
(7) "Expendable supplies" designates those
appliances and equipment that are not
469 8:6 NORTH CAROLINA REGISTER June 15, 1993
PROPOSED RULES
recyclable, such as disposable gauze
sponges, bandages, detergents and similar
items.
(8) "Extension of hospital stay" is an
approved additional number of days of
hospitalization beyond those initially
authorized.
(9) "Extension of validity" is an approved
change of the period of validity during
which an authorization for hospitalization
or outpatient surgery is in effect.
(10) "Inpatient" is a person who is admitted to
the hospital as a bed patient on a hospital
ward.
(11) "Low Income" means an individual or
family with an income determined to be
below the nonfarm income official
poverty line defined by the Office of
Management and Budget and revised
annually in accordance with Section 624
of the Economic Opportunity Act of
1964.
•(44) (12) "Medical or surgical emergency" is
a situation arising from any disease,
defect or condition normally supported by
Children's Special Health Services which
may be life-threatening, or in which
delay of prompt remedial medical care
would be detrimental to the future health
and well-being of the child.
{i^ (13) "Non-sponsored clinic" is a clinic
which serves individuals with Children's
Special Health Services supported medi-cal
conditions but which is not recog-nized,
supported and listed as an official
Children's Special Health Services clinic.
<4-^ (14) "Outpatient" is an individual who
receives care without inpatient hospital
admission. This includes care provided
in emergency rooms, clinics, and
physicians' offices, or in other hospital
settings, including outpatient surgery.
(44) 115] "Period of validity" is the 30 days
following the date approved for
admission during which hospitalization
for inpatient care or outpatient surgery
may begin.
{iSj (16) "Rostered orthodontist and
prosthodontist" are specialists who meet
the stipulations set forth in Section .0700
of this Subchapter and who have made
application to and been approved by
Children's Special Health Services to
request authorizations and provide
services for eligible children.
(44) (17) "Rostered physician" is a medical
specialist who meets the stipulations set
forth in Section .0700 of this Subchapter
and who has made application to and
been approved by Children's Special
Health Services to request authorizations
and provide services for eligible children.
(+7) (18) "Rostered speech and language
pathologist" is a specialist who meets the
stipulations set forth in Section .0700 of
this Subchapter and has made application
to and been approved by Children's
Special Health Services to request
authorizations and provide services for
eligible children.
(+8) (19) "Rostered audiologist" is a
specialist who meets the stipulations set
forth in Section .0700 of this Subchapter
and has made application to and been
approved by Children's Special Health
Services to request authorizations and
provide services for eligible children.
(+9) (20) "Sponsored clinic" is a clinic that is
recognized, supported, and listed as an
official Children's Special Health
Services.
Statutory Authority G.S. 130A-124.
TITLE 16 - DEPARTMENT OF
PUBLIC EDUCATION
iSotice is hereby given in accordance with G.S.
150B-21.2 that the State Board of Education
intends to amend rules cited as 16 NCAC 6C . 0312
and .0401 - .0403.
1 he proposed effective date of this action is
September 1, 1993.
The public hearing for 16 NCAC 6C .0312 will
be conducted at 9:30 a. m. and 16 NCA C 6C . 0401
- .0403 will be conducted at 10:30 a.m. on July 2,
1993 at the State Board Room, 7th Floor, Educa-tion
Bldg. , 301 N. Wilmington Street, Raleigh, NC
27601-2825.
ixeason for Proposed Action:
16 NCAC 6C .0312 - Amendment requires school
administrators to report sexual or physical abuse
of children by teachers to the State Board.
16 NCAC 6C . 0401 - . 0403 - Amendments provide
8:6 NORTH CAROLINA REGISTER June 15, 1993 470
PROPOSED RULES
greater flexibility in earning and use of leave and
make technical corrections.
i^omment Procedures: Any interested person may
submit views either in writing by July 15, 1993 or
orally at the hearing.
CHAPTER 6 ELEMENTARY AND
SECONDARY EDUCATION
SUBCHAPTER 6C - PERSONNEL
SECTION .0300 - CERTIFICATION
.0312 CERTIFICATE SUSPENSION AND
REVOCATION
(a) The SBE may deny an application for certifi-cation
or may suspend or revoke a certificate
issued by the Department only for the following
reasons:
(1) fraud, material misrepresentation or
concealment in the application for
certification;
(2) changes in or corrections of the certifi-cate
documentation which makes the
individual ineligible to hold a certifi-cate;
(3) conviction or entry of a plea of no
contest, as an adult, of a crime if there
is a reasonable and adverse relationship
between the underlying crime and the
continuing ability of the person to
perform any of his/her professional
functions in an effective manner;
(4) final dismissal of a person by a local
board pursuant to G.S.
115C-325(e)(l)b., if there is a
reasonable and adverse relationship
between the underlying misconduct and
the continuing ability of the person to
perform any of his/her professional
functions effectively;
(5) final dismissal of a person by a LEA
under G.S. 1 15C-325(e)(l)e.;
(6) resignation from employment with a
LEA without 30 work days' notice,
except with the prior consent of the
local superintendent;
(7) revocation of a certificate by another
state; aad
(8) any other illegal or immoral conduct by
a person, if there is a reasonable and
adverse relationship between the
underlying conduct and the continuing
ability of the person to perform any of
his/her professional functions in an
effective manner^ and
{9} Failure to report revocable conduct as
required under Paragraph (b) of this
Rule.
(b) Any superintendent, assistant superintendent,
associate superintendent, personnel administrator
or principal who knows or has substantial reason
to believe that a certified employee of the LEA has
engaged in behavior that would justify revocation
of the employee's certificate under Subparagraphs
(3), (4) or (8] of Paragraph (a) of this Rule and
which behavior involves physical or sexual abuse
of a child shall report that information to the
Superintendent of Public Instruction. For purposes
of this Section, the term "physical abuse" means
the infliction of serious physical injury other than
by accidental means and other than in self-defense.
The term "sexual abuse" means the commission of
any sexual act upon a student or causing a student
to commit a sexual act, regardless of the age of the
student and regardless of the presence or absence
of consent.
(c) ^ Upon the receipt of a written request and
substantiating information from any LEA, local
superintendent or other person in a position to
present information as a basis for the suspension or
revocation of a person's certificate, the Superinten-dent
of Public Instruction will conduct an investi-gation
sufficient to determine whether reasonable
cause exists to believe that the person's certificate
should be suspended or revoked.
(1) If the Superintendent determines that
reasonable cause exists to believe that
the person's certificate should be sus-pended
or revoked on one or more of
the grounds specified in Paragraph (a)
of this Rule, the Superintendent shall
prepare and file written charges with
the SBE.
(2) The SBE will review the written charg-es
and determine whether the person's
certificate should be suspended or
revoked based on the information con-tained
in the written charges. If the
SBE determines that the written charges
constitute grounds for suspension or
revocation, it shall provide the person
with a copy of the written charges, and
notify the person that it will revoke the
person's certificate unless the person,
within 60 days of receipt of notice,
initiates administrative proceedings
under Article 3. Chapter 150B of the
471 8:6 NORTH CAROLINA REGISTER June 15, 1993
PROPOSED RULES
Genera] Statutes. The notice will be
sent certified mail, return receipt re-quested
.
(3) If the person initiates administrative
proceedings the SBE will defer final
action on the matter until receipt of a
proposed decision as provided for in
G.S. 150B-34. If the person does not
initiate administrative proceedings
within 30 days of receipt of notice, the
SBE may suspend or revoke the
person's certificate at its next meeting.
(d) fe) Tlie SBE may suspend an individual's
certificate for a stated period of time or may
permanently revoke the certificate, except as
limited by G.S. lI5C-325(o).
(e) {d) The SBE may reinstate a suspended or
revoked certificate or may grant a new certificate
upon application and a showing of good cause by
the individual. The burden of proving good cause
is on the applicant.
Ifi (e) The SBE will notify all other states of all
actions which involve the suspension, revocation
or reinstatement of a certificate.
(g) ff) The SBE will consider requests for
reinstatement of revoked certificates. The SBE
will not grant any request for reinstatement unless
it finds as facts that:
(1) the action that resulted in revocation
did not involve abuse of minors;
possession, sale or use of controlled
substances; moral turpitude or grounds
listed in G.S. 1 15C-325(e)(l)b. or e.;
(2) the person has no record of subsequent
behavior that could have resulted in
certificate revocation;
(3) there is no court order or judicial
determination that would prohibit the
person from returning to a certificated
position; and
(4) there has been a sufficient lapse of time
since revocation for the person to
appreciate the value of certification.
Authority G.S. 115C-12(9)a.; N.C. Constitution,
Article IX, Sec. 5.
SECTION .0400 - LEAVE
.0401 VACATION LEAVE
(a) All full-time or part-time permanent public school employees who are working or on paid leave for at
least one-half of the calendar days in a month earn vacation leave, based on length of state service in North
Carolina.
(b) A part-time permanent employee in a budgeted position earns vacation leave on a pro rata basis.
8:6 NORTH CAROLINA REGISTER June 15, 1993 472
PROPOSED RULES
(c) Local boards of education may choose to record leave earned in hours. If leave is recorded in hours,
the leave earned as indicated jn this Paragraph will be multiplied times the regular number of hours worked
per day. Employees earn vacation leave as follows;
Years of Days Per Month
State Service of Employment
Less than 2 yrs. 1.00
2 but less than 5 yrs. 1.15
5 but less than 10 yrs. 1.40
10 but less than 15 yrs. 1.65
15 but less than 20 yrs. 1.90
20 yrs. or more 2.15
(d) LEAs credit state service for full-time or part-time permanent employment figured on the same basis
as for longevity pay. The LEA must establish the anniversary date for each employee on the basis of the
employee's state service.
(e) The LEA may advance vacation leave to an employee.
(f) The LEA transfers unused vacation leave when an employee transfers between LEAs. An employee may
have leave transferred to or from a state agency or institution, community college or technical institute, a
position subject to the State Personnel Act in a local mental health, public health, social services or emergency
management agency, if the receiving agency is willing to accept the leave; otherwise, the employee will be
paid in a lump sum for accumulated leave not to exceed 30 workdays or 240 hours, according to the earning
rate.
(g) Leave payment at separation is subject to the following:
(1) An employee who is overdrawn on leave when he or she separates will have the excess leave
corrected through a deduction from the final salary check.
(2) Payment for leave may be made on the regular payroll or on a supplemental payroll. The LEA
makes payment from the same source of funds and in the same proportion as the employee's salary
is paid.
(3) Terminal leave payment is subject to the same deductions as salary, including retirement.
(4) The receipt of lump sum leave payment and retirement benefit is not dual compensation.
(5) The LEA makes payment for unpaid salary, terminal leave and travel of a deceased employee to
the personal representative of the deceased employee, or if there is no personal representative, to
the Clerk of Superior Court of the county in which the employee resided.
(h) Each LEA shall maintain leave records for all employees. LEAs must inform employees of their leave
balances at least once a year. LEAs must retain leave records for separated employees for at least five years
from the date of separation.
(i) Leave must be taken in one-half days, whole days, or hours as determined for earning purposes by the
local board minimum units of one half or whole days .
(j) Instructional personnel and school bus drivers may not take vacation leave on days when students are
scheduled to be in attendance. These persons may take vacation leave instead of sick leave on days when
students are not scheduled to attend. LEAs may designate specific scheduled workdays for required attendance
as long as employees have an opportunity to take annual leave earned during the school year. Employees may
charge leave taken only to scheduled teacher workdays and the ten vacation leave days scheduled in the school
calendar.
(k) Other employees may take vacation leave instead of sick leave. These employees must have an
opportunity to take annual leave earned in the school year.
Statutory Authority G.S. U5C-272: 115C-285; 115C-302; U5C-316.
.0402 SICK LEAVE worked daily by a full-time employee in that class
(a) Public school employees who earn vacation of work. Part-time employees earn and may use
leave also earn sick leave. Full-time employees sick leave in proportion to the part of the day for
earn one day per month or the number of hours which they are employed.
473 8:6 NORTH CAROLINA REGISTER June 15, 1993
PROPOSED RULES
(h) The LEA may allow sick leave to be used
for temporary disability which prevents an employ-ee
from performing his or her usual duties, illness
in the employee's immediate family and attendant
medical appointments which require the
employee's attendance, death in the immediate
family and medical appointments for the employee.
The immediate family includes spouse, children,
parents (including the step relationship) and
dependents living in the household, except that in
the case of death, the term does not include
dependents but does include siblings, grandparents,
grandchildren, and the step, half and in-law
relationships.
(c) Employees must take leave in one-half days,
whole days, or hours as determined for earning
purposes by the local board minimum—units
one half or whole workdays .
(d) Employees may accumulate sick leave
indefinitely and may transfer sick leave as in the
case of vacation leave.
(e) LEAs may advance sick leave not to exceed
the amount which would be earned within the
school year.
(f) An employee who is overdrawn on sick leave
when the employee separates from service will
have the excess leave corrected through a
deduction from the final salary check.
(g) If the period of sick leave taken is less than
30 days, the employee will return to his or her
position with the LEA. If the period of temporary
disability exceeds 30 days, the superintendent shall
determine when the employee is to be reinstated.
The superintendent makes this decision based on
the welfare of the students and the need for
continuity of instruction.
(h) The LEA shall credit an employee who
separates from service and returns within 60
months with all sick leave accumulated to the time
of separation.
(i) Permanent full or part-time instructional
personnel, excluding teacher assistants, who are
absent due to their personal illness or injury in
excess of their accumulated sick leave, shall be
allowed extended sick leave of ug to 20 work days
throughout the regular term of employment.
These days do not have to be consecutive. Anew
employee must have reported to work to be
eligible for extended sick leave. The
superintendent may require a doctor's certificate or
other acceptable proof of the reason for the
absence. Up>on exhaustion of sick leave, including
the extended 20 days or optionally used vacat i on
leave, as permi ss ible, the employee shall be placed
on leave without pay for a period of up to one
year or the end of the contracted period of employ
mcnt, whichever is shorter. TTiis may be extended
beyond these times limits as approved by the local
board.
Statutory Authority G.S. 115C-12(8); 115C-336.
.0403 SUBSTITUTES
(a) LEAs shall employ all substitutes deemed
necessary for the efficient operation of the unit.
The superintendent determines the need to employ
a substitute for a non-teaching assistant principal,
principal or supervisor.
(b) The period of substitution is short term if it
includes 5 or less consecutive day s in the same
position. Periods in exces s of five days arc
long term.
(b) {s) LEAs employ substitute teachers in units
of half or whole days. The—tEA
—
treats
responsibilities which require less than half a day
as a half day of employment.
(c) {^ The LEA pays substitutes as follows:
(1) A person who substitutes for a
non-teaching assistant principal,
principal or supervisor is paid from
local funds.
(2) Unless required to be otherwise, a
substitute for the regular teacher is paid
from the same source of funds as the
regular teacher is paid.
(d) fe) Absences not covered in Rule .0404
require the appropriate amount of substitute
teacher pay to be deducted from the regular
teacher's salary. These absences include extended
sick leave as explained in Paragraph (f) of this
Rule, personal leave and in-state meetings of no
longer than 3 days or out-of-state meetings of no
longer than 5 days, and not to exceed a total of 10
days within the school year, for professional
responsibilities and attendance at professional
meetings. The superintendent must approve these
absences. The time limitations of this Rule do not
apply to a person who is the local or district
president or president-elect or a state or national
officer of an educational professional organization,
or to a person selected as National Teacher of the
Year from this state.
(f)
—
A teacher may be absent due to personal
illness for up to 20 teaching days in excess of
accumulated s ick leave.—The superintendent may
require a doctor's certificate or other acceptable
proof of the reason for the absence.
(e) fg) Teachers earn personal leave at the rate
of one-half day for every two and one-half months
.20 days for full month of employment and may
8:6 NORTH CAROLINA REGISTER June 15, 1993 474
PROPOSED RULES
accumulate five personal leave days. Teachers
may transfer these days between LEAs. A teacher
who requests personal leave at least five days in
advance of the date desired is not required to give
a reason for the leave. No teacher may take
personal leave on the first day teachers are re-quired
to report for the school year, required
teacher workdays, the day before or the day after
holidays or scheduled vacation days, except as
approved by the principal. The LEA shall credit
a teacher who has separated from service and is
re-employed within 60 months from the date of
separation with all personal leave, up to the
five-day maximum, accumulated at the time of
separation. The LEA may not advance personal
leave beyond that which a teacher earns. Teachers
may take personal leave in units of one-half or
whole days.
(f) -Oh If the regular teacher vacates a teaching
position during the school year, that teacher
receives the regular compensation for the actual
days employed during the current month, adjusted
for overdrawn leave or unpaid longevity pay. If
the LEA employs an interim teacher to fill the
vacancy until a regular teacher is available, the
LEA pays the interim teacher as follows:
(1) For service of no more than 10
teaching days, the person is paid as a
substitute.
(2) For service in excess of 10 teaching
days, the person is paid on the basis of
the person's certified salary rating.
The person may elect to be paid as a
substitute.
Statutory Authority G.S. 115C-12 (8)
.
475 8:6 NORTH CAROLINA REGISTER
RRC OBJECTIONS
1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).
ADMINISTRATION
Environmental Policy Act
1 NCAC 25 .0213 - Environmental Policy Act Advisory Committee
Agency Revised Rule
1 NCAC 25 .0401 - Method of Compliance
Agency Revised Rule
1 NCAC 25 .0506 - Review Process
Agency Revised Rule
1 NCAC 25 .0603 - Format and Content
Agency Revised Rule
AGRICULTURE
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
04/15/93
04/15/93
04/15/93
04/15/93
04/15/93
04/15/93
04/15/93
04/15/93
Plant Industry
2 NCAC 48A .0206 - The Transportation of Bees
Agency Revised Rule
2 NCA C 48A . 0207 - Requirements for Issuance of Permit
Agenc}' Revised Rule
RRC Objection 05/19/93
Obj. Removed 05/19/93
RRC Objection 05/19/93
Obj. Removed 05/19/93
COMMERCE
Cemetery Commission
4 NCAC 5B .0103 - Hearings
Agency Revised Rule
4 NCAC 5D .0101 - Report
Agency Revised Rule
4 NCAC 5D .0201 - Report
Agency Revised Rule
4 NCAC 5D .0202 - Delivery
Agency Revised Rule
Community Assistance
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
04/15/93
04/15/93
04/15/93
04/15/93
04/15/93
04/15/93
04/15/93
04/15/93
4 NCAC 19L .0913 - Grant Closeouts
Agenc}' Revised Rule
4 NCAC 19L .1101 - Reporting
Agency Revised Rule
4 NCAC 19L . 1505 - Preliminary Awards
Agency Revised Rule
4 NCAC 19L . 1604 - Preliminary Awards
Agency Revised Rule
Savings Institutions Division: Savings Institutions Commission
4 NCAC 16G .0311 - Required Provisions in Plan of Conversion
RRC' Objection 05/19/93
Obj. Removed 05/19/93
RRC' Objection 05/19/93
Obj. Removed 05/19/93
RRC' Objection 05/19/93
Obj. Removed 05/19/93
RRC Objection 05/19/93
Obj. Removed 05/19/93
RRC Objection 03/18/93
8:6 NORTH CAROLINA REGISTER June 15, 1993 476
RRC OBJECTIONS
Agency Revised Rule
Agency Revised Rule
ENVIRONMENT. HEALTH, AND NATURAL RESOURCES
Coastal Management
ISA NCAC 7H . 1205 - Specific Conditions
Rule Returned to Agency
Environmental Management
15A NCAC 2H .1110 - Implementation
Agency Responded
Agency Responded
Laboratory Services
15A NCAC 20D .0234 - Criteria & Procedures: Decert. /Denial/Downgrading
Agency Revised Rule
Radiation Protection
RRC Objection
Obj. Removed
03/18/93
04/15/93
RRC Objection 03/18/93
04/15/93
RRC Objection 02/18/93
Obj. Cont'd 03/18/93
Obj. Cont'd 05/19/93
RRC Objection
Obj. Removed
03/18/93
04/15/93
15A NCAC 11 .0108 - Additional Requirements RRC Objection 05/19/93
Agency Revised Rule Obj. Removed 05/19/93
ISA NCAC 11 .0207 - Issuance of Notice of Registration RRC Objection 05/19/93
Agency Revised Rule Obj. Removed 05/19/93
ISA NCAC 11 .0212 - Modifications: Revocation: Termination of Registrants RRC Objection 05/19/93
Agency Revised Rule Obj. Removed 05/19/93
ISA NCAC II .0214 - Training/Educational Requirements for Equipment Svcs RRC Objection 05/19/93
Agency' Revised Rule Obj. Removed 05/19/93
ISA NCAC 11 .0337 - Issuance of Specific Licenses RRC Objection 05/19/93
Agency Revised Rule Obj. Removed 05/19/93
ISA NCAC 11 .0507 - Leak Testing and Source Tagging RRC Objection 05/19/93
Agency Revised Rule Obj. Removed 05/19/93
ISA NCAC 11 . 1215 - Conditions of License RRC Objection 05/19/93
Agency Revised Rule Obj. Renwved 05/19/93
HUMAN RESOURCES
Children's Services
10 NCAC 41E .0514 - Child Care & Development: Health
Agency Revised Rule
10 NCAC 41G .0705 - Medical Program
Agency Revised Rule
10 NCAC 41 Q .0201 - Personnel
Agency Responded
Departmental Rules
RRC Objection 04/15/93
Obj. Removed 05/19/93
RRC Objection 04/15/93
Obj. Removed 04/15/93
RRC Objecticm 04/15/93
Obj. Cont'd 05/19/93
10 NCAC IM .0002 - Complaints
Agency Revised Rule
10 NCAC IM .0003 - Investigation
Agency Revised Rule
RRC Objection 04/15/93
Obj. Removed 04/15/93
RRC Objection 04/15/93
Obj. Removed 04/15/93
477 8:6 NORTH CAROLINA REGISTER June 15, 1993
RRC OBJECTIONS
Facility Services
10 NCAC 3C .2020
Agency Revised
10 NCAC 3C .2021
Agency Revised
10 NCAC 3C .2030
Agenc}' Revised
10 NCAC 3C .2033
Agency Revised
10 NCAC 3H .1150
Agency Revised
10 NCAC 3H .1151
Agency Revised
10 NCAC 3H .1160
Agency Revised
10 NCAC 3H .1163
Agency Revised
INSURANCE
Actuarial Services
- Definitions
Rule
- Physician Reqs/Inpatient Rehabilitation Facilities or Units
Rule
- Physical Facility Reqs/Inpatient Rehab Facilities or Units
Rule
- Deemed Status/Inpatient Rehabilitation Facilities or Units
Rule
- Definitions
Rule
- Physician Reqs/Inpatient Rehabilitation Facilities or Units
Rule
- Physical Facility Reqs/Inpatient Rehab Facilities or Units
Rule
- Deemed Status/Inpatient Rehabilitation Facilities or Units
Rule
RRC' Objection 04/15/93
Obj. Removed 04/15/93
RRC' Objection 04/15/93
Obj. Removed 04/15/93
RRC' Objection 04/15/93
Obj. Renuned 04/15/93
RRC' Objection 04/15/93
Obj. Removed 04/15/93
RRC' Objection 04/15/93
Obj. Removed 04/15/93
RRC' Objection 04/15/93
Obj. Removed 04/15/93
RRC' Objection 04/15/93
Obj. Removed 04/15/93
RRC' Objection 04/15/93
Obj. Removed 04/15/93
11 NCAC 16 .0303 - Annual Filing
Agency Revised Rule
Consumer Services
11 NCAC 4 .0428 - Enforcement
Agency Revised Rule
Agency Repealed Rule
Financial Evaluation Division
11 NCAC IIB .0607 - Application - Employers
Agency Revised Rule
11 NCAC 1 IB .0610 - Application - Groups
Agency Revised Rule
11 NCAC IIH .0001 - Definitions
Agency Revised Rule
JUSTICE
Private Protective Services
RRC Objection
Obj. Removed
04/15/93
04/15/93
RRC Objection 03/18/93
RRC Objection 03/18/93
Obj. Removed 04/15/93
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
03/18/93
04/15/93
03/18/93
04/15/93
05/19/93
05/19/93
12 NCAC 7D .0809 - Authorized Firearms
Agency Revised Rule
LICENSING BOARDS AND COMMISSIONS
Electrolysis Examiners
21 NCAC 19 .0401 - Infection Control Standards
Agency Revised Rule
RRC Objection 04/15/93
Obj. Removed 05/19/93
RRC Objection
Obj. Removed
05/19/93
05/19/93
8:6 NORTH CAROLINA REGISTER June 15, 1993 478
RULES INVALIDATED BY JUDICIAL DECISION
1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court,
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which
invalidate a rule in the North Carolina Administrative Code.
1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES
Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions
of Rule 1 NCAC 5A .0010 void as applied in Staujfer Information Systems, Petitioner v. The North Carolina
Department of Community Colleges and The North Carolina Department of Administration, Respondent and
The University of Southern California, Intervenor-Respondent (92 DOA 0666).
10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS
Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human
Resources, Division of Facility Services. Licensure Section, Respondent (92 DHR 1192).
15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES
Julian Mann IIL Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of
Marine Fisheries, Respondent {92 EHR 0820).
ISA NCAC 19A .0202(d) (10) - CONTROL MEASLTRES - HIV
Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A
NCAC 19A .0202(d)( 10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle),
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina,
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment
,
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as
Chief Comtnunicable Disease Control Section of the North Carolina Department of Environment, Health, and
Natural Resources, Wayne Bobbitt Jr. , as Chief of the HIV/STD Control Branch of the North Carolina
Department of Environtnent . Health, and Natural Resources , Respondents (91 EHR 0818).
479 8:6 NORTH CAROLINA REGISTER June 15, 1993
CONTESTED CASE DECISIONS
1 his 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.
AGENCY
CASE
NUMBER ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
ADMINISTRATION
McLaurin Parking Co. v. Administration
ALCOHOLIC BEVERAGE CONTROL COMMISSION
92 DOA 1662 Morrison 04/02/93 8:3 NCR 320
Alcoholic Beverage Control Comm. v. Ann Oldham McDowell
Curtis Ray Lynch v. Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Comm. v. Gary Morgan Neugent
Alcoholic Beverage Control Comm. v. Kirby Ronald Eldridge
Alcoholic Beverage Control Comm. v. Gloria Black McDuffie
Alcoholic Beverage Control Comm. v. Larry Isacc Hailslock
Johnnie L. Baker v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr.
Alcoholic Bev. Control Comm. v. Mild & Wild, Inc., Sheila Scholz
COMMERCE
Lester Moore v. Weatherization Assistance Program
CRIME CONTROL AND PUBLIC SAFETY
92 ABC 0260 Morgan 04/01/93
92 ABC 0288 Gray 05/18/93
92 ABC 1086 Becton 03/22/93
92 ABC 1153 Chess 04/26/93
92 ABC 1476 West 05/26/93
92 ABC 1483 Reilly 04/07/93
92 ABC 1735 Chess 05/07/93
93 ABC 0125 Reilly 05/13/93
93 ABC 1475 Nesnow 03/23/93
93 COM 0105 Gray 03/08/93
George W. Paylor v. Crime Victims Compensation Comm.
Anthony L. Hart v. Victims Compensation Comm.
Jennifer Ayers v. Crime Victims Compensation Comm.
Janie L. Howard v. Crime Victims Compensation Comm.
Isahelle Hyman v. Crime Victims Compensation Comm.
James G. Pellom v. Crime Control & Public Safety
Moses H. Cone Mem Hosp v. Victims Compensation Comm.
Phillip Edward Moore v. Crime Control & Public Safety
John Willie Leach v. Crime Victims Compensation Comm.
Constance Brown v. Crime Victims Compensation Comm.
ENVIRONMENT. HEALTH. AND NATURAL RESOURCES
91 CPS 1286 Morgan 04/27/93
92 CPS 0937 Chess 03/01/93
92 CPS 1195 Reilly 03/19/93
92 CPS 1787 Reilly 03/26/93
92 CPS 1807 Morrison 05/24/93
93 CPS 0034 Gray 05/05/93
93 CPS 0152 Nesnow 04/02/93
93 CPS 0169 Nesnow 05/20/93
93 CPS 0263 Morrison 05/20/93
93 CPS 0351 Reilly 05/24/93
8:3 NCR 327
Charles L. Wilson v. Environment, Health. & Natural Resources
Utley C. Stallings v. Environment, Health, & Natural Resources
Safeway Removal, Inc. v. Environment, Health, & Natural Res.
Elizabeth City /Pasquotank Cty Mun Airport Auth v. EHNR
Service Oil Company v. Environment, Health. & Natural Resources
City of Salisbury v. Environment, Health, & Natural Resources
Willie M. Watford v. Hertford Gates District Health Department
Standard Speciality Contractors, Inc. v. EHNR
Angela Power. Albert Power v. Children's Special Health Svcs.
Mustafa E. Essa v. Environment, Health. & Natural Resources
Roselta Brimage, Vanessa Pack v. Env. Health of Craven County
Shell Bros. Disl., Inc. v. Environment, Health, & Natural Resources
91 EHR 0664 Morgan 03/23/93
92 EHR 0062 Gray 03/15/93
92 EHR 0826 West 03/12/93
92 EHR 1140 Gray 04/13/93
92 EHR 1205 Reilly 05/27/93
92 EHR 1472 Morrison 04/22/93
92 EHR 1600 Chess 03/24/93
92 EHR 1660 Reilly 05/21/93
93 EHR 0008 Becton 03/24/93
93 EHR 0146 Gray 03/29/93
93 EHR 0206 Nesnow 05/20/93
93 EHR 0308 Becton 05/18/93
8:1 NCR 83
HUMAN RESOURCES
O.C. Williams v. Human Resources
Ronald Terry Brown v. Human Resources
O.C. Williams v. Human Resources
91 CSE0036*- Morgan 03/30/93
91 CSE0249 Morgan 05/17/93
91 CSE 1158*= Morgan 03/30/93
Consolidated cases.
8:6 NORTH CAROLINA REGISTER June 15, 1993 480
CONTESTED CASE DECISIONS
AGENCY
Michael L. Ray v. Human Resources
Rand> Chambliss v. Human Resources
Melvin White v. Human Resources
Jefferson D. Boylen v. Human Resources
Jefferv D. Williams v. Human Resources
Samuel E. Massenberg Jr. v. Human Resources
William A. Dixon v. Human Resources
Grcgon, L. Washington v. Human Resources
Edwin Clarke v. Human Resources
Dwaync Allen v. Human Resources
Eduin Ivester v. Human Resources
Edward E. Brandon \'- Human Resources
Darrell W, Russell v. Human Resources
Michelle D. Mohley v. Human Resources
Robert E. Watson v. Human Resources
Byron Christopher Williams v. Human Resources
James W. Bell v. Human Resources
Eric Stanley Stokes v. Human Resources
David Rollins v. Human Resources
Lyndcll Greene v. Human Resources
Leroy Snuggs v. Human Resources
James P. Miller HI v. Human Resources
Larry L. Crowderv. Human Resources
Carlos Bernard Davis v. Human Resources
Timothy Brian Eller v. Human Resources
Charles S. Ferrer v. Human Resources
Ronald H. Lockley v. Human Resources
Rene TTiomas Rittenhouse v. Human Resources
Thomas Edward Williamson v. Human Resources
Roy Chester Robinson v. Human Resources
William E. Ingram v. Human Resources
Harold R. Pledger v. Human Resources
Dale Robert Sluhre v. Human Resources
Tommy Malone v. Human Resources
James C. Dixon Jr. v. Human Resources
Wallace M. Cooper v. Human Resources
Jarvis N. Price v. Human Resources
Thomas L. Yates v. Human Resources
Robert E. Tarlton Sr. v. Human Resources
Rodney Devard demons v. Human Resources
James A. Coleman v. Human Resources
Romeo F. Skapplev. Human Resources
Jeffrey L. Garrett v. Human Resources
William C. Hubbard v. Human Resources
Edward Filch v. Human Resources
Brian C. Gilmore \'. Human Resources
Johnny W. Cooke v. Human Resources
Isaac Maxwell v. Human Resources
Donald J, Ray v. Human Resources
McKinley Clybum \'. Human Resources
Jeftcrv D. Williams v. Human Resources
Billy Smith v. Human Resources
Anthony Curry v. Human Resources
Larn. W. Golden v. Human Resources
William J. Carter v. Human Resources
Eric Stanley Stokes v. Human Resources
Patrick Floyd v. Human Resources
James E. Blakney v. Human Resources
Barbara W. Catlett v. Human Resources
Laurel Langford v. Human Resources
Ida Diane Davis v. Human Resources
Hatsuko Klein \'. Human Resources
Leon Barbee v. Human Resources
James H. Hunt Jr. v. Div. of Medical Assistance
Barbara Jones v. Human Resources
Joyce P. Williams v. Human Resources
Snoopy Day Care. Diane Hamby v. Child Day Care Licensing
CASE
NUMBER ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
91 CSE 1173 Morgan 05/17/93
91 CSE 1187 Morgan 04/28/93
91 CSE 1192 Morgan 05/17/93
91 CSE 1217 Morgan 05/17/93
91 CSE 1231 Morgan 04/28/93
91 CSE 1249 Morgan 05/17/93
91 CSE 1277 Morrison 03/04/93
92 CSE 0075 Morgan 04/01/93
92 CSE 0129 Morgan 05/17/93
92 CSE 0196 Morgan 03/31/93
92 CSE 0268 Nesnow 03/30/93
92 CSE 1237 Gray 04/16/93
92 CSE 1249 Becton 04/20/93
92 CSE 1256 Nesnow 04/15/93
92 CSE 1265 Reilly 05/06/93
92 CSE 1270 Nesnow 04/26/93
92 CSE 1311 Nesnow 05/10/93
92 CSE 1316*' Reilly 03/25/93
92 CSE 1334 Morrison 05/06/93
92 CSE 1346 Nesnow 04/16/93
92 CSE 1360 Morrison 04/15/93
92 CSE 1361 Gray 04/16/93
92 CSE 1396 Reilly 04/15/93
92 CSE 1404 Reilly 04/15/93
92 CSE 1414 Reilly 04/20/93
92 CSE 1416 Mann 04/15/93
92 CSE 1418 Nesnow 04/20/93
92 CSE 1421 Nesnow 04/20/93
92 CSE 1422 Reilly 04/20/93
92 CSE 1423 Reilly 04/15/93
92 CSE 1450 Reilly 04/15/93
92 CSE 1455 Morrison 05/20/93
92 CSE 1516 Reilly 05/11/93
92 CSE 1520 Mann 05/07/93
92 CSE 1522 Becton 05/11/93
92 CSE 1527 Reilly 05/11/93
92 CSE 1531 Morrison 05/12/93
92 CSE 1535 Gray 05/10/93
92 CSE 1536 Gray 05/17/93
92 CSE 1539 Gray 05/10/93
92 CSE 1540 Reilly 05/11/93
92 CSE 1545 Gray 04/26/93
92 CSE 1557 Gray 04/22/93
92 CSE 1562 Mann 05/12/93
92 CSE 1572 Reilly 05/11/93
92 CSE 1576 Gray 04/26/93
92 CSE 1585 Becton 05/11/93
92 CSE 1589 Reilly 04/26/93
92 CSE 1592 Mann 05/19/93
92 CSE 1623 Morrison 05/20/93
92 CSE 1626 Mann 05/19/93
92 CSE 1629 Reilly 03/25/93
92 CSE 1631 Reilly 03/25/93
92 CSE 1633 Reilly 03/25/93
92 CSE 1637 Nesnow 05/19/93
92 CSE 1652*' Reilly 03/25/93
92 CSE 1663 Reilly 05/20/93
92 CSE 1779 Nesnow 05/13/93
92 DCS 0577 West 03/15/93
92 DCS 1181 Gray 05/04/93 8:5 NCR 441
92 DCS 1200 Gray 03/29/93
92 DCS 1271 Reilly 05/05/93
92 DHR 0658 Morrison 04/30/93 8:4 NCR 392
92DHR 1145 Becton 05/13/93 8:5 NCR 443
92 DHR 1192 Nesnow 04/02/93 8:3 NCR 313
92 DHR 1275 Gray 03/15/93
92 DHR 1320 Morgan 05/21/93
i
i
i
481 8:6 NORTH CAROLINA REGISTER June 15, 1993
CONTESTED CASE DECISIONS
AGENCY
CASE DATE OF
NUMBER AL,) DECISION
92 DHR 1329 Chess 05/10/93
92 DHR 1604
Reilly 05/10/93
92 DHR 1612 Chess 03/08/93
92 DHR 1613 Chess 03/08/93
92 DHR 1614 Chess 03/09/93
93 DHR 0010 Becton 03/11/93
PUBLISHED DECISION
REGISTER CITATION
Cynthia Reed v. Human Resources
Helm's Rest Home, Ron J. Schimpf/Edith H. Wilson v. Human Resources Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc.
Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc.
Betty Butler v. Human Resources
Samuel Benson v. Office of Admin. Hearings for Medicaid
INSURANCE
Carolyn M. Hair v. St Employees Comprehensive Major Medical 92 INS 1464 Chess 03/10/93
JUSTICE
Colin Carlisle Mayers v. Sheriffs' Ed. & Training Stds. Comm.
Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm.
Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm.
Sherri Ferguson Revis v. Sheriffs' Ed. &. Training Stds. Comm.
Mark Thomas v. Sheriffs" Ed. & Training Standards Commission
N.C. Alarm Systems Licensing Bd. v. Vivian Darlene Gaither
LABOR
Greensboro Golf Center, Inc. v. Labor 92 DOL 0204 Nesnow 04/15/93
MORTUARY SCIENCE
92 DOJ 0761 Morrison 05/10/93
92 DOJ 1088 Morrison 03/16/93
92 DOJ 1367 Chess 04/01/93
92 DOJ 1756 Gray 03/23/93
93 DOJ 0151 West 04/21/93
93 DOJ 0202 Chess 05/10/93
Board of Mortuary Science v. Triangle Funeral Chapel, Inc.
STATE PERSONNEL
Frances K. Pate v. Transportation
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,
James H. Johnson, James D. Fishel v. Justice
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,
James H. Johnson, James D. Fishel v. Justice
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,
James H. Johnson, James D. Fishel v. Justice
Lawrence D. Wilkie, Jerry R. Evans. Jules R. Hancart,
James H. Johnson, James D. Fishel v. Justice
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart,
James H. Johnson, James D. Fishel v. Justice
Bernie B. KelUy v. Correction
Brenda G. Mitchell v. Correction
Clayton Brewer v. North Carolina State University
Sherman Daye v. Transportation
Donnie M. White v. Correction
Gregory Samuel Parker v. Environment, Health, &. Natural Resources
Renee E. Shepherd v. Winston-Salem State University
Eva Dockery v. Human Resources
Gregory Samuel Parker v. Environment, Health, & Natural Resources
Willie Granville Bailey v. Winston-Salem State University
Julia Spinks v. Environment, Health, Sl Natural Resources
James B, Price v. Transportation
I. Gary NaiUing v. UNC-CH
Deborah Barber v. Correction
Laverne B. Hill v. Transportation
Jimmy D. Wilkins v. Transportation
Sarah W. Britt v. Human Resources, C.A. Dillon School, CPS
Herman James Goldstein v. UNC-Chapel Hill et al.
Glinda C. Smith v. Wildlife Resources Commission
William Kenneth Smith Jr. v. Broughton Hospital (Human Resources)
Larry O. Nobles v. Human Resources
Willie Thomas Hope v. Transportation
Suzanne Ransley Hill v. Environment, Health, & Nat. Res.
Herman James Goldstein v. UNC-Chapel Hill et al.
John B. Sauls v. Wake County Health Department
Gilbert Jaeger v. Wake County Alcoholism Treatment Center
Joseph Henry Bishop v. Environment, Health, & Natural Res.
92 BMS 1169 Reilly 04/29/93 S:4 NCR 396
88 OSP 0340 Morrison 05/03/93
90 OSP 1064** Mann 05/04/93
90 OSP 1065*' Mann 05/04/93
90 OSP 1066** Mann 05/04/93
90 OSP 1067*" Mann 05/04/93
90 OSP 1068** Mann 05/04/93
91 OSP 0344 Morrison 05/27/93
91 OSP 0625 West 03/08/93 8:1 NCR 75
91 OSP 0941 West 04/02/93 8:3 NCR 306
91 OSP 0951 West 05/07/93
91 OSP 1236 Morgan 04/05/93
91 OSP 1344** Chess 05/20/93
91 OSP 1391 Morgan 04/28/93
92 OSP 0010 Chess 05/03/93
92 OSP 0188*' Chess 05/20/93
92 OSP 0285 Morrison 03/10/93
92 OSP 0313 Becton 04/12/93 8:4 NCR 382
92 OSP 0375 Gray 04/13/93
92 OSP 0394 Becton 04/20/93
92 OSP 0396 Chess 03/04/93
92 OSP 0431*' West 03/08/93
92 OSP 0432*' West 03/08/93
92 OSP 0455 West 05/26/93 8:6 NCR 484
92 OSP 0634 Morrison 05/04/93
92 OSP 0653 Morrison 03/12/93
92 OSP 0684 Becton 05/10/93
92 OSP 0732 Mann 04/23/93
92 OSP 0947 Morgan 03/23/93
92 OSP 0992 Reilly 03/18/93 8:2 NCR 224
92 OSP 1047 Morrison 05/04/93
92 OSP 1142 Reilly 03/08/93 8:1 NCR 88
92 OSP 1204 Reilly 05/10/93
92 OSP 1243 Reilly 03/05/93
8:6 NORTH CAROLINA REGISTER June 15, 1993 482
CONTESTED CASE DECISIONS
AGENCY
Willie L. Hudson V. Correction
Brenda K. Campbell v. Employment Security Commission
James B. Price v. Transportation
Belly Bradsherv. UNC-CH
Jama! Al Bakkat-Morris v. Glenn Sexton (DSS)
Brenda Kay Barnes v. Human Resources
Larry G. Riddle v. Correction, Division of Prisons
Stevie E. Dunn v. Polk Youth Center
Buford D. Vieregge Jr. v, N.C. Slate University. University Dining
Barbara A. Johnson v Human Resources
Carrie P- Smith v. County of Stanly
George W. Allen v. Human Resources. Correction, Agri & EHNR
William G. Fisher v. St Bd o( Ed. Albermade City Schools & Bd of Ed
Clifton E. Simmons v. Correction
Willie L. James v. Caswell Center
Ining S. Rodgers v. C.A. Dillon, Division of Youth Services
Jerrv D, Doss Sr. v. Correction
CASE DATE OF PUBLISHED DECISION
>anviBER AL,I DECISION REGISTER CITATION
92 OSP 1468 Be^;ton 05/26/93
92 OSP 1505 Morrison 03/17/93
92 OSP 1657 Mann 03/19/93
92 OSP 1733 Becton 03/30/93
92 OSP 1741 Becton 03/24/93
92 OSP 1768 Morrison 03/17/93
92 OSP 1774 Gray 04/26/93
92 OSP 1789 Becton 04/19/93
92 OSP 1796 Morrison 05/27/93
93 OSP 0103 Morrison 03/17/93
93 OSP 0109 Beclon 04/01/93
93 OSP 0111 Reilly 04/16/93
93 OSP 0134 Becton 04/20/93
93 OSP 0159 Morrison 04/21/93
93 OSP 0171 Morgan 05/27/93
93 OSP 0177 West 04/21/93
93 OSP 0287 Gray 05/17/93
i
STATE TREASURER
Herman D. Brooks v. Bd of Trustees /Teachers* &. Si Emp Ret Sys
Henrietta Sandlin v. Teachers' &. State Emp Comp Major Medical Plan
Mary Alyce Carmichael v. Bd/Trustees /Teachers' & St Emp Ret Sys
91 DST0566 Gray 04/13/93
92 DST 0305 Morgan 04/12/93
92 DST 1506 Chess 04/08/93
TRANSPORTATION
^'ates Construction Co., Inc. v. Transportation 92 DOT 1800 Morgan 03/25/93
i
483 8:6 NORTH CAROLINA REGISTER June 15, 1993
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
92 OSP 0455
SARAH W. BRITT,
Petitioner,
V.
N. C. DEPARTMENT OF HUMAN RESOURCES,
DIVISION OF YOUTH SERVICES, C.A. DILLON
SCHOOL, AND N.C. DEPARTMENT OF CRIME
CONTROL AND PUBLIC SAFETY,
Respondent.
RECOMMENDED DECISION
STATEMENT OF THE CASE
This contested case was heard on the merits between January 21, 1993 and January 28, 1993 in
Raleigh by Administrative Law Judge Thomas R. West.
Petitioner, Sarah W. Britt (Britt), was continuously employed by Respondent Department of Human
Resources (DHR) from 1979 to June 1991 in its Division of Youth Services. In June 1991, Britt was
employed at the C. A. Dillon School as a Volunteer Services Director I (Grade 66). On June 30, 1991, Britt
was separated from employment pursuant to a reduction in force.
Between June 19, 1991 and June 6, 1992, Britt applied for 16 positions at DHR and 4 positions at
the Department of Crime Control and Public Safety (CC&PS). On June 15, 1992, DHR offered the position
of DHR Volunteer Services Coordinator at Dorothea Dix Hospital (Grade 63) to Britt. Britt accepted the
position.
On April 23, 1992, Britt filed a petition for a contested case hearing against DHR and CC&PS. Britt
alleges that Respondents failed to hire her in accordance with Reduction in Force (RIF) policies and
procedures, that Respondents denied her priority as a career state employee, and that Respondents
discriminated against her on the basis of age and political discrimination.
Prior to the hearing, dispositive motions were filed by Respondents and heard.
L
On June 1 , 1992, Respondents filed a "Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment and Motion for More Definite Statement." Petitioner responded on June 12, 1992 and on July 6,
1992 a hearing was held on the motions. At the hearing, the Administrative Law Judge made the following
rulings on the record;
a. The motions were DENIED with regard to Petitioner's claims of discrimination on the basis
of age and gender;
b. A limiting instruction was given regarding evidence. The judge ruled that no evidence would
be received to show that Petitioner had been denied priority re-employment rights for the
following positions:
8:6 NORTH CAROLINA REGISTER June 15, 1993 484
CONTESTED CASE DECISIONS
i. Volunteer Services Program Consultant (Grade 70 DHR); See Ex. J^ #20;
ii. Staff Development Specialist III (Grade 70 DHR); See Ex^ L, #15;
iii. Rehabilitation Therapy Supervisor (Grade 68 DHR); See Ex. L^ #24;
iv. Community Development Specialist I (Grade 70 CC&PS); See Ex. L^ #25 .
Britt was at a pay Grade 66 when RIFed and has no right to priority re-employment in
positions graded higher than 66.
c. Britt v-as ordered to file a more definite statement of the positions for which she claimed
relief.
These Orders were stated on the record and can be found in Volume I of the transcript of this
contested case.
n-
On Januan,' 11. 1993. DHR filed a "Second Motion to Dismiss or. in the Alternative. Motion for
Summan,' Judgment." Britt responded on January' 19, 1993. The motion was heard at 2:00 p.m. on January
20, 1993, and the judge announced his ruling at the conclusion of the hearing. The specific motions and
rulings are as follows:
JURISDICTION - The motions v.ere DENTED. G.S. 126-36 empowers the Personnel Commission
to grant relief to former state employees for claims of political discrimination. Petitioner became a former
state employee when her position was RIFed.
FAILURE TO TI.MELY FILE A PETITION - DHR moved to dismiss claims relating to the following
positions listed in Petitioner's Exhibit 1 for failure of the Petitioner to file a petition within the time limit set
forth in G.S. 126-38:
1
.
DHR Rehab. Therapeutic Activity Coordinator;
2. DHR Advocate II;
9. DHR Facility Services Admin. I;
20. DHR Volunteer Service Program Consultant;
21. DHR Staff Development.
The Administrative Law Judge DENIED the motions ruling that the time limit for filing a petition had
not begun to run since there is no e\idence that Britt receixed the notice of appeal rights required by G.S.
150B-23.
POLITICAL DISCRI.MINATION. LACK OF .MINIMUM QUALIFICATIONS -Motions relating to these two
issues were DENTED. Issues of material fact existed.
m.
At the close of Britt's case, her counsel made a motion for a directed verdict (Rule 50 1. The motion
was DENIED.
CC&PS made a motion on the record, pursuant to Rule 41 to dismiss Britt's claim relating to the
485 8:6 NORTH CAROLINA REGISTER June 15, 1993
CONTESTED CASE DECISIONS
Community Services District Coordinator position #09209 (Ex. 1, #8). The motion was GRANTED. The
evidence, when considered in the appropriate light, shows that the person who filled that position was a
transfer from within CC&PS so that Britt had no priority RIF rights to the position. CC&PS made a motion
pursuant to Rule 41 to dismiss Britt's claim relating to the positions described in Ex. 1, #25, #31, and #40.
The motions were DENIED.
DHR made a motion on the record, pursuant to Rule 41 to dismiss Britt's claims relating to those
positions described in Ex. 1 numbers 1,2, 3, 23, 24, 56, 15, 19, 20, 21, 68, 33, and 46. Tlie motions were
DENIED.
At the close of her case, Britt withdrew any claim relating to the DHR Vocational Rehab. Advocate
Specialist I position. See Ex. \_^ #56.
Britt's claim of age discrimination is limited to CC&PS and to only one position - position #31 on
Ex. 1, Community Development Specialist I.
Britt's claim of political discrimination extends to twelve (12) positions. The positions are listed on
Ex. 1 as numbers:
1, 2, 3, 15, 19, 20, 21, 23, 24, 25, 33, and 46. Britt argues that she was discriminated against for political
reasons when she was not hired for these positions because:
a. She met the stated qualifications;
b. She had priority re-employment rights which could have been satisfied by being offered a
position graded higher than 66;
c The positions at issue are not exempt;
d She is an active Democrat;
e. Only people recommended by the Governor or department secretary were hired.
Britt's priority re-employment claim is two-fold. Britt argues she is entitled to relief because of
Respondents' procedural violations and because she was denied priority re-employment in two (2) positions
at Grade 66 or below for which she met the qualifications.
A chart outlining Britt's claims follows:
Violation of RIF Political
DHR 1 1
DHR 2
DHR 3
DHR 15
DHR 19
DHR 20
DHR 21
DHR 23 23
DHR 24
CC&PS 25
CC&PS 31
DHR 33
CC&PS 40
DHR 46
8:6 NORTH CAROLINA REGISTER June 15, 1993 486
CONTESTED CASE DECISIONS
WITNESSES
Petitioner Britt called the following witnesses:
1. Sarah W. Britt - Petitioner.
2. Gwendolyn C. Chunn - Director, Division of Youth Services (DYS), DHR.
3. Joyce Weathersby - Personnel Analyst I, Office of State Personnel.
4. Bruce Marshburn - Deputy Director of the Governor's Crime Commission.
5. Susan Hutchins - Personnel Director, DHR.
6. Grady Stephenson - Personnel Director, DYS, DHR.
7. Robert M. Sumpter - Personnel Officer, Murdoch Center, DHR.
Respondent DHR called the following witnesses:
1. Sandy Brock - Director of Personnel, John Umstead Hospital, DHR.
2. Kathy Watson - Personnel Manager, Office of the Secretary, DHR.
Respondent CC&PS called the following witness:
1. Arthur C. Zeldman - Director of Victim and Justice Services Division, CC&PS.
EXHIBITS
Exhibits listing has been omitted from this publication. It can be obtained by contacting this office.
OFFICIAL NOTICE
Official notice is taken of:
1. Chapter 126 of the General Statutes of North Carolina.
2. Title 25 of the North Carolina Administrative Code.
3. PERSONNEL MANUAL - Office of State Personnel.
BURDEN OF PROOF
Britt has the burden of proving by the greater weight of the substantial evidence that she is entitled
to the relief requested in her petition.
Based upon the exJiibits and the testimony of the witnesses, including an analysis of their credibility,
based partially upon personal observation, the undersigned finds the following to be the facts:
FINDINGS OF FACT
\. Petitioner Sarah W. Britt (Britt) is a white female older than forty (40) years of age. Britt is
approximately sixty (60) years old.
2. Britt began work at the C.A. Dillon School in August, 1979 as an Administrative Officer I. In June,
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1980, she became the Volunteer Services Coordinator II for the school. In 1985 or 1986, Britt moved to a
Volunteer Services Coordinator I position. Grade 66.
3. TTie C. A. Dillon School is an institution within the Division of Youth Services, Department of
Human Resources.
4. On June 30, 1991, Britt lost her job at C. A. Dillon School as the result of a Reduction in Force
(RIF). Britt was earning Thirty Thousand, Six Hundred Fifty-one ($30,651.00) Dollars.
Britt was a permanent state employee entitled to the protections of Chapter 126 of the General Statutes
of North Carolina.
5. As a matter of law, Britt was entitled to priority consideration for re-employment for one year
following her dismissal (RIF), subject to certain conditions.
6. The following conditions applied to Britt's right to priority consideration for re-employment:
a. DHR was required to offer Britt any available vacant position of a salary Grade 66 or below
from and after the time she was notified of her RIF, provided Britt met the qualifications for
the position and could perform the job in a reasonable length of time, including normal
orientation and training given any new employee;
b. All other agencies were required to interview Britt for any vacant position for which she had
priority status and was qualified prior to employing anyone who is not a permanent state
employee;
c. Britt's right to priority re-employment status terminated after she had received twelve (12)
months priority re-employment consideration.
7. In addition to the priority rights Britt enjoyed as a matter of law due to her status as a permanent state
employee, Britt was granted additional rights as a matter of policy by DHR;
a. Prior to the actual separation, DYS and the Dillon School were required to attempt to place
Britt in another position within the division or institution that was vacant and for which she
met the minimum qualifications;
b. When Britt was not placed in a position in DYS or Dillon sixty (60) days before her
scheduled separation (June 30, 1991), she was entitled to priority placement status for
vacancies in other divisions and institutions in DHR.
8. Pursuant to law and policy DHR had certain responsibilities to Britt:
a. DHR was required to give notice to Britt of her impending RIF as soon as possible and
preferably at least forty-five (45) calendar days prior to the scheduled separation;
b. Simultaneously with notifying Britt of her RIF rights, DHR was required to apply to the
Office of State Personnel (OSP) that Britt wished to be advantaged by the automated priority
referral system operated by OSP;
c. The personnel manager at Dillon or DYS was required to inform Britt of the location of the
combined DHR vacancy report. If Britt made the personnel manager aware of vacancies in
which she was interested, the manager was responsible for forwarding a completed, current
application to the personnel manager of the division or institution with the vacant position,
certifying priority placement status and that the individual meets minimum general qualifica-tions
for the position.
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CONTESTED CASE DECISIONS
9. Pursuant to policy set forth in OSP's PERSONNEL MANUAL, DHR and CC&PS were required to
refer to the current Priority Re-employment Inventory when a vacancy occurred. When priority applicants
are indicated for the vacancy, the agencies must request a Priority Re-employment Certificate from OSP.
10. Britt was RIFed effective June 30, 1991 at a salary Grade 66, earning Thirty Thousand Six Hundred
Fifty-one Dollars ($30,651.00). On June 15, 1992, DHR re-hired Britt as the Volunteer Services Coordinator
at Dorothea Dix Hospital in a salary Grade 63 at a salary of Twenty-nine Thousand Eight Hundred Fifty-two
($29,852.00) Dollars. The salary is the maximum for Grade 63. Eight Thousand Nine Hundred Forty Dollars
($8,940) was transferred from DYS to Dix in order to place Britt as close to her former salary as possible.
11. In interrogatories served on DHR, Britt asked DHR to identify all persons within DHR and OSP who
contacted Britt about vacancies within state government for which she was eligible in accordance with the
policy described above in Finding of Fact 8(c). DHR failed to name any employee of DHR who informed
Britt of the locations of the combined departmental vacancy report which DHR policy required be made
available to Britt. DHR answered that it had no knowledge of any person from OSP who contacted Britt.
12. DHR gave notice to Britt on June 10, 1991 that her employment would be terminated effective June
30, 1991 . Susan Hutchins, Personnel Director of DHR testified that the reduction in force was due to budget
shortfalls, that it began developing a RIF plan in February, 1991, that the General Assembly mandated cuts
as of June 30, 1991, that DHR was not even aware of until late May 1991 and that the decision to RIF
Volunteer Service Directors at DYS was not approved until June 7, 1991.
Gwen Chunn, Director of DYS testified that she began work on the June 1991 RIF in August 1990.
Although all five (5) Volunteer Service Director positions were RIFed in June 1991, only four (4)
people were displaced because a person holding one of the positions had taken another position in the Fall of
1990 because of her awareness of the impending RIF.
Chunn testified that she would be surprised if June 10, 1991 was the first that Britt knew of the
impending RIF of her position because of talk among DYS employees and publications in the newsletter about
impending cuts stating that direct care positions would be the last to be cut.
13. Britt first learned of the existence of a "RIF Register" in January 1992 as the result of a conversation
with employees of OSP.
14. On June 19, 1991, Britt applied for the position Rehabilitation Therapeutic Activity Coordinator
(Grade 66) at the John Umstead Hospital. (PI, #1) Umstead is an institution within DHR.
Britt was told of the vacancy by Susan Fortner, who was Personnel Manager for DYS. Fortner told
Britt she had discussed the vacancy with Gail Harvey in the personnel department at Umstead and that they
felt Britt was qualified for the vacancy.
15. On July 16 or 19, 1991, Britt went to see Secretary Flaherty, Secretary of DHR on a matter unrelated
to this contested case. Secretary Flaherty asked Britt how she liked her job at Umstead. Britt told the
Secretary she was not working there, and that she had not interviewed. Secretary Flaherty asked Britt if she
were interested. Britt responded that she was, and Flaherty told her he would see she got an interview. At
the end of the meeting, Flaherty called Hutchins into his office, introduced her to Britt, told Hutchins a little
about Britt's work history and told Hutchins that he wanted her to do what she could to help Britt find a job.
In 1985, Secretary Flaherty had made the comment to Britt one time that if she wanted to get ahead
at DHR, she knew what she needed to do. Britt interpreted the remark to mean that she needed to change
her registration from Democrat to Republican.
16. Britt called and arranged for an interview. She interviewed on August 19. 1991 and on August 20,
1991 was rejected for the job for the reason that she lacked the minimum qualifications for the position.
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17. The specification for the position of Rehabilitation Therapy Coordinator provides that the minimum
education and experience is graduation from a four (4) year college with a degree in recreation, physical
education, or a human services field and two years of experience in therapeutic programming which involves
program/goal planning.
18. Britt received a B.S. degree from Wake Forest University in 1953. Her major areas of course work
were health, physical education and recreation. From September 1953 to June 1956, Britt taught junior high
school girls health and P.E. and coached basketball and tennis.
From 1958 to 1959, Britt taught math, health and P.E. to seventh graders. In 1979, Britt taught all
subjects to eighth (8th) graders in the Robeson County Schools, and in 1978 and 1979 was a tutor for reading,
math, geography, and typing at Robeson Community College.
From August 1979 to June 1980, Britt was the Business Administrator at the C. A. Dillon School.
In June, 1980, Britt became the Director of Volunteer Services at Dillon. In March, 1991, she assumed the
additional responsibility of Staff Training Coordinator.
At the meeting in March 1991 at which this additional duty was assigned, Chunn stated to the four
Volunteer Services Directors in attendance that they knew how they had gotten their jobs, and knew how they
could lose them. Britt had originally received her job by appointment of the Governor. Britt thought the
remark was unusual, and now believes it to be a comment about the impending RIF of her position.
19. After being rejected for the position, Britt talked with Flaherty and asked for reconsideration because
a lot of her work in recreation had been in unpaid positions and had not been on her application. The
Secretary encouraged Britt to write a letter asking for reconsideration listing everything she had done in the
field of recreation. Britt did so.
20. On September 9, 1991, Umstead again rejected Britt's application for the reason that she lacked the
minimum qualifications.
21. Britt believes she met the qualifications for the Rehabilitation Therapeutic Activity Coordinator
position because of her experience teaching health and P.E., her work with adolescents, her college degree
in teaching, and her recreational work.
22. No evidence was presented by DHR during the contested case hearing regarding why Umstead
concluded Britt was not qualified for position #1.
23. Position #1 was frozen at the time Britt applied for it. The position was filled in June 1992, after
Britt became employed at Dix by Ms. Toni Rankin. Rankin received her B.A. in Psychology from East
Carolina University in 1984 and is well qualified for the position. DHR did not describe Rankin as a
permanent state employee in its answers to interrogatories. Rankin was not recommended by the Governor
or Secretary Flaherty.
24. In July 1991 , Britt began working with Joyce Weathersby, a Personnel Analyst at OSP. Weathersby
works with people who have been RIFed.
Part of Weathersby 's duties are to evaluate RIFed employee's qualifications to determine if that person
meets the minimum qualifications for a position. It is then the responsibility of the interviewing agency to
determine if the applicant is qualified for the vacancy. Weathersby does not refer RIFed employees for
interviews for vacancies unless she is satisfied they have the minimum qualifications described for the position.
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CONTESTED CASE DECISIONS
Weathersby suggested Britt apply for the following positions listed in Ex. 1:
1 9 31
2 20
3 23
8 27
25. On October 3, 1991, Britt applied for two positions at Murdoch Center, DHR Advocate I and DHR
Advocate II. (Ex. 1, §2, 3). On October 3, 1991, Robert Sumpter, Personnel Manager of Murdoch wrote Britt
a letter rejecting her application on the basis that "... the educational and experience qualifications of the
Advocate I and II positions do not match up to [Britt's] ver^' rich background "
The Advocate I position was pay Grade 68. The Advocate II position was pay Grade 69. There is
no evidence that the positions were filled by someone recommended by the Secretary of DHR or the Office
of the Governor.
DHR filled the positions of Advocate I and Advocate II with state employees employed at Murdoch
who were qualified for the positions.
26. On November 7, 1991 , Britt applied for the position of Community Services District Coordinator for
Wake County. The position is with CC&PS and is a salary Grade 64. Britt was not interviewed. TTie
position was eventually filled by a Community Services District Coordinator for Wilson County who
commuted daily from Raleigh to Wilson. The state employee transferred into the position requested the
transfer because of a degenerative eye condition which made it dangerous for her to drive after dark.
27. On November 13, 1991, Britt applied for the position of Facility Services Administrator I with DHR
(Ex.1, #9). The position is at salary Grade 67. On November 13, 1991, Britt interviewed for the position.
Britt met the minimum requirements for the position.
On February 3, 1992, Jacquelyn A. Norris, Head of the Health Care Facilities Branch wrote Britt that
she had not been chosen, and that the position had been offered to Wayne Denning. Denning accepted the
position. Denning was a permanent state employee employed as the manager of the Courier Service. Denning
was recommended for the position by the Governor's office.
28. When an applicant was recommended to Respondents by the Governor's office or the office of the
Department Secretary, the applicant went on a "must interview" list.
29. On December 20, 1991, Britt applied for the position of Staff Development Specialist III with DYS
(Ex. 1, #15). Tlie position is a salary Grade 70. Britt met the minimum requirements for the position. Britt
was not hired to fill the position.
30. The Staff Development Specialist III position was filled by Kim Davis-Gore at a salary of around
Thirty Thousand Dollars ($30,000). Gore was not recommended by either the office of the Governor or the
DHR Secretary but was recommended by George Jones, an Assistant Secretary of DHR.
31. Chunn testified that Davis-Gore was the most qualified person who applied for the position. Chunn
testified that traditionally the person who holds the Staff Development Specialist III position has had a
Master's Degree. TTie client base the position serves is seventy percent (70%) black and eighty-five percent
(85%) male. Chunn testified that DYS had an affirmative action plan, and that in addition to being most
qualified for the position, Davis-Gore, who is a black female, was hired pursuant to the plan.
32. The Staff Development Specialist III position was not part of DYS' affirmative action plan in 1991.
On Davis-Gore's application, an "x" appears next to the word "yes" in the column "Grad?" indicating she had
a Master's Degree in Criminal Justice from the University of South Carolina. In answers to interrogatories
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CONTESTED CASE DECISIONS
propounded by Britt, DHR answered that Davis-Gore had thirty-six (36) hours toward her M.A. in Criminal
Justice.
33. Britt was interviewed for the job filled by Davis-Gore because she met the minimum qualifications
for the position, but not hired because she had no priority right to the job. If Britt had been offered the job
and turned it down, her RIF rights would have terminated.
34. Before moving to the Staff Development Specialist position, Davis-Gore was a Unit Administrator
at the Dillon School. As such, she oversaw programming in a unit housing thirty-three (33) male youths, and
counseled students and staff as needed
.
35. When the decision to hire Davis-Gore was made, Chunn had no knowledge that Britt had teaching
experience. At the time of the hearing of this case, Chunn was aware that Britt is a professional teacher, but
that awareness was irrelevant to Chunn because she would have wanted to have observed Britt's teaching.
Chunn believes that Britt had n