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The
NORTH CAROLINA
REGISTER
IN THIS ISSUE
EXECUTIVE ORDERS
IN ADDITION
Final Decision Letter
PROPOSED RULES
Commerce
Environment, Health, and Natural Resources
Human Resources
Public Education
Social Work, Certification Board for
LIST OF RULES CODHTED
RRC OBJECTIONS
RULES INVALIDATED BY JUDICIAL DECISION
RECEIVED
CONTESTED CASE DECISIONS
JUN 3 1993
ISSUE DATE: June 1, 1993
IM LIBRARY
Volume 8 • Issue 5 • Pages 401 - 455
INFORMATION ABOUT THF. NORTH CAROLINA REGISTER AND ADMINISTRATIVE COPF
NORTH CAROLINA REGISTER TEMPORARY RULES
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 ($105.00) 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. 2761 1-7447.
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 may 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 that
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
Hearings (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 agency 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 (S0.15) 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: Ru es Division, P.O.
Drawer 27447, Raleigh, North Carolina 27611 -7447, (919)
733-2678.
<
NORTH
CAROLINA
REGISTER
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
ISSUE CONTENTS
I. EXECUTIVE ORDERS
Executive Orders 9-12 401
II. IN ADDITION
Voting Rights Act 407
III. PROPOSED RULES
Commerce
Alcoholic Beverage Control
Commission 408
Banking Commission 408
Environment, Health, and
Natural Resources
Health Services 425
Human Resources
Medical Assistance 414
Mental Health, Developmental
Disabilities and Substance Abuse
Services 413
Licensing Board
Social Work 428
Public Education
Elementary and Secondary 427
IV. LIST OF RULES CODIFIED . . 432
V. RRC OBJECTIONS 436
VI. RULES INVALIDATED BY
JUDICIAL DECISION 442
VII. CONTESTED CASE DECISIONS
Index to ALI Decisions 443
Text of Selected Decisions
92 DCS 1181 447
92 DHR 1145 449
VIII. CUMULATIVE INDEX 454
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
******* ******* ******* ******* ******* ******* sf: -J*, if, -^. if. vjc -Jf.
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 Codifier of Rules five (5) business days before the 1st business day of the next
calendar month.
EXECUTIVE ORDERS
EXECUTIVE ORDER NUMBER 9
COMMISSION FOR A
COMPETITIVE NORTH CAROLINA
WHEREAS, the increasing globalization of
economic relationships, the movement of goods,
information, technology and capital across national
boundaries, and the restructuring of national and
state economies have changed the conditions for
long-term economic success; and
WHEREAS, increasing the ability of North
Carolina's people, communities, and enterprises to
compete successfully in a global market place is
vital to the long-term economic prosperity and
quality of life for the citizens of this state; and
WHEREAS, building the long-term competitive
capacity for the people, communities, and enter-prises
of North Carolina requires concerted and
cooperative effort by the public sector; the private
sector, and the nonprofit sector, and new forms of
partnerships that involve the contributions that
each sector is best positioned to make; and
WHEREAS, effective public sector action and
successful partnerships are dependent upon a
commonly shared view of long-term economic
success, a clear understanding of the necessary
roles each partner must play in achieving that
success, and clear and specific measures of desired
outcomes that focus the efforts of all partners; and
WHEREAS, the public sector must rethink its
role as an effective partner for long-term develop-ment
by becoming more entrepreneurial in action,
by tying resources directly to desired long-term
outcomes, by establishing clear benchmarks for
measuring performance, by holding itself account-able
to the people for measurable performance,
and by instituting performance based budgeting to
hold agencies and programs similarly accountable;
NOW THEREFORE, by the authority vested in
me as Governor by the constitutions and laws of
North Carolina and the United States, it is OR-DERED:
Section 1. ESTABLISHMENT
The Commission for a Competitive North Caroli-na
is hereby established to develop a long-term,
comprehensive vision for competitive people,
communities, and enterprises; to determine the
appropriate role of state government in achieving
that vision; to recommend changes in policies and
programs compatible with that role; to define
measurable outcomes to achieve the vision of
competitive people, communities, and enterprises;
and to establish performance measures for periodi-cally
measuring progress in achieving those out-comes.
Section 2. MEMBERSHIP
The Commission shall consist of up to 40 mem-bers
appointed by the Governor. The membership
may include representatives of the private sector,
the nonprofit sector, local government, and the NC
General Assembly.
Section 3. CHAIR
The Governor shall serve as Chair of the Com-mission.
The Governor will appoint one Vice
Chair representing the private sector and one Vice
Chair representing the nonprofit sector, who shall
serve for two years.
Section 4. TASK FORCES
The Governor shall also appoint chairs for the
task forces of the Commission. The Governor,
Vice Chairs, and the Task Force Chairs shall form
the Steering Committee for the Commission. The
task forces shall consist of members of the com-mission,
plus such other resource persons as the
Steering Committee shall designate. Task forces
shall be organized on the following topics, plus
such others as the Steering Committee shall desig-nate
as necessary to accomplish the mission of the
Commission: the business environment, the
people and the workforce, the natural environ-ment,
the physical and technological infrastructure,
the international environment, and entrepreneurial
governance.
Section 5. MEETINGS
The Commission shall meet at the call of the
Governor.
Section 6. PURPOSE
The purpose of the Commission for a Competi-tive
North Carolina is to prepare a long-term,
comprehensive vision for competitive people,
communities and enterprises in North Carolina;
define measurable outcomes for achieving that
vision; establish performance standards for periodi-cally
assessing progress toward that vision; recom-mend
changes in methods of operation for state
government programs and agencies to achieve that
8:5 NORTH CAROLINA REGISTER June 1, 1993 401
EXECUTIVE ORDERS
vision; and recommend a permanent organizational
structure for monitoring performance measures and
updating outcomes and recommendations. The
Commission will prepare a final report to the
people of North Carolina not later than fall, 1994
that includes necessary actions to accomplish the
recommendations in that report.
Propose a long-term vision for a competi-tive
North Carolina that reflects the
results of the studies, reviews, analyses,
focus groups, public testimony, and other
forms of insight that the Commission
receives in the process of performing its
tasks and functions.
The Commission shall, in the performance of its
tasks and functions:
Conduct a comprehensive review of all
prior studies and reports by public or
private entities in North Carolina relevant
to the mission, tasks, and function of the
commission.
Conduct a comprehensive review of all
prior studies and reports by public or
private entities relevant to the mission,
tasks, and function of the Commission by
other states, including Oregon, Florida,
Minnesota, Arizona, and Texas.
Conduct an examination of major indus-trial
sectors in North Carolina to deter-mine
likely changes in response to long-term
economic competitiveness and likely
impacts on people, enterprises, and com-munities
in North Carolina.
Use focus groups and other appropriate
methods to gather input from representa-tives
of the public sector, the private
sector, the nonprofit sector, and the
citizens of this state on the most critical
issues for long-term competitiveness, the
relative priority of these issues, strategic
goals, barriers to achieving those goals,
and the aspirations of the people of this
state for their children, their communi-ties,
their natural environment, and their
economic opportunities.
Gather such other data and information as
may be necessary and useful for accom-plishing
the purpose of the Commission.
Work cooperatively with other boards,
commissions, and entities and take maxi-mum
advantage of their resources and
activities that can provide useful informa-tion
and insight to the purpose of this
Commission.
Propose measurable outcomes that will
determine success in accomplishing that
long-term vision.
Propose performance measures to deter-mine
progress toward achieving those
outcomes.
Propose specific actions to enable the
Governor and the legislature to take
effective action to focus resources on
strategic initiatives.
Propose specific changes in the gover-nance
of relevant programs and activities
in state government to enable them to
focus more directly on desired outcomes
and be held accountable for those out-comes;
to operate as part of an efficient,
integrated system; to engage in new
forms of partnerships; to have an impact
of significant scale and magnitude to
accomplish desired long-term outcomes;
and to operate effectively and efficiently
in a rapidly changing environment to
maintain and improve the competitiveness
of North Carolina's people, communities,
and enterprises in a global market place.
Propose a permanent organizational
structure that would monitor performance
measures, update the recommendations in
view of that performance and a changing
environment, and issue periodic reports
to the Governor, the legislature, and the
people of North Carolina on the progress
of the state in achieving the specified
objectives.
Prepare a final report on its findings and
recommendations.
Section 7. COOPERATION OF STATE
AGENCIES
All state agencies shall cooperate with the Com-mission
as it implements its tasks and functions.
The Governor's Policy Office shall serve as coor-
402 8:5 NORTH CAROLINA REGISTER June 1, 1993
EXECUTIVE ORDERS
dinator of agency staff and other staff assistance to
the Commission.
Section 8. ADMINISTRATION AND
EXPENSES
The Department of Administration shall provide
necessary administrative and support services to
fulfill the Commission's tasks and functions.
The Commission is authorized to accept grants,
gifts, bequests, and other offers of assistance
necessary to carry out its tasks and functions. The
operating budget for the Commission shall derive
solely from such grants, gifts, bequests, and other
offers of assistance. Also, each state agency
cooperating in the work of the Commission may
provide additional funds from its own budget to
support the Commission.
Members of the Commission and staff shall
receive necessary travel and subsistence expenses
in accordance with state law.
Section 9. EFFECTIVE DATE
This Executive Order is effective immediately.
Done in the Capitol City of Raleigh, North
Carolina this 5th day of May, 1993.
EXECUTIVE ORDER NUMBER 10
ESTABLISHING THE QUALITY
LEADERSHIP AWARDS COUNCIL
By the authority vested in me as Governor by the
Constitution and laws of North Carolina, IT IS
ORDERED:
Section 1. Establishment.
The Quality Leadership Awards Council ("Coun-cil")
is hereby established. The Council shall have
two subordinate committees: the Examination
Board and the Recognition Committee. It may
have other committees as well.
Section 2. Membership.
1 . The Council shall consist of not more than
thirty members, including:
A. the Secretary of Commerce, or his
designee;
B. the President of the University of North
Carolina System, or his designee;
C. the President of the System of Communi-ty
Colleges, or his designee;
D. the Commissioner of Labor, or his
designee;
E. a member recommended by the Lieuten-ant
Governor;
F. a member recommended by the Speaker
of the House;
G. the President of North Carolina Citizens
for Business and Industry;
H. the Chair of the North Carolina Quality
Leadership (NCQL) Foundation, or his
designee;
1. two appointees by the Governor from the
education or non-profit sectors;
J. no more than twelve ranking officials of
organizations receiving a Quality Leader-ship
Award ("Award") from the State:
K. four industrial representatives;
L. the Chair of the Commission on
Workforce Preparedness; and
M. the Governor, or his designee.
2. The members of the Board of Examiners
subordinate committee shall be drawn from profes-sional
and technical experts in total quality man-agement
and quality assurance-related fields.
Members shall be invited to serve by the Council
and shall serve at its pleasure.
3. The members of the Recognition Committee
shall be drawn from business, industry, education,
and government personnel concerned with award
programs and public relations, especially repre-senting
industry associations and regional councils
concerned with quality and productivity improve-ment.
Members shall be invited to serve by the
Council and shall serve at its pleasure.
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) and (F) above shall serve at
the pleasure of the Governor. The Governor shall
fill all vacancies. However, should a vacancy
occur in a seat held by a member recommended by
the Lieutenant Governor or the Speaker of the
House, the Governor shall fill that vacancy only
after recommendation by the appropriate official.
The Council shall elect its Chair from among its
members.
Section 4. Purposes.
The purposes of the Council shall be:
A. to enhance education and training of
management and workforce, both current
and future;
B. to improve competitiveness of North
Carolina business and industry, especially
8:5 NORTH CAROLINA REGISTER June 1, 1993 403
EXECUTIVE ORDERS
L).
supplier relationships;
to encourage exchange of information
toward quality improvement, especially
through regional councils and industry
associations; and
to promote application of the seven prin-ciples
of total quality management in
North Carolina organizations.
Section 5. Duties.
1 . The North Carolina Quality Leadership
Awards Council shall have the following responsi-bilities:
A. approve and announce Quality Leadership
Award ("Award") and Honor Roll recipi-ents
in the following categories: manu-facturing
and service industries (large-,
medium-, and small-sized); and educa-tion,
government, health care, and non-profit
institutions;
B. approve guidelines consistent with the
principles of total quality management
with which to examine applicant organi-zations;
C. approve appointments of Judges and
Examiners;
D. arrange appropriate annual awards and
recognition for recipients;
E. recommend changes in the awards pro-cess,
in cooperation with the N.C.Q.L.
Foundation;
F. cooperate with related education, train-ing,
technology transfer, and research
initiatives proposed by the N.C.Q.L.
Foundation; and
G. arrange for a Master of Ceremonies in
presenting the Awards.
2. The Board of Examiners shall:
A. conduct evaluation of applicant organiza-tions
by assessing applications, making
recommendations, and conducting site
visits of participating organizations;
B. recommend Award guidelines;
C. nominate Award recipients; and
D. recommend Examiners and Judges to the
Council.
3. The Recognition Committee shall:
A. recommend the types of awards; and
B. recommend the format and timing of
ceremonies.
Section 6. Administrative Support.
Operations support for the Council and Examina-tion
Board, including administrative and training
activities, shall be provided by the NCQL Founda-tion
staff. The Department of Commerce, the
University of North Carolina System, and the
System of Community Colleges may provide
additional staff and administrative support on a
voluntary basis.
Section 7. Rescission.
Executive Orders 119 and 166 of the Martin
Administration are hereby rescinded.
This Order shall be effective immediately.
Done in Raleigh, North Carolina, this the 5th
day of May, 1993.
EXECUTIVE ORDER NUMBER 11
GOVERNOR'S COUNCIL OF
FISCAL ADVISORS
WHEREAS, it is desirable that Governors have
benefit of the combined counsel of those officials
primarily responsible for the State's fiscal affairs.
NOW THEREFORE, to accomplish that end and
pursuant to authority vested in me as Governor by
the Constitution and laws of the State of North
Carolina, IT IS ORDERED:
Section L. Establishment.
There is established the Governor's Council of
Fiscal Advisors whose membership shall consist
of:
(a) The State Treasurer
(b) The State Auditor
(c) The State Budget Officer
(d) The Secretary of the Department of
Revenue
(e) The State Controller
(f) The Governor's General Counsel
(g) The Governor's Advisor for Policy
Section 2. Purpose.
The purpose of the Council shall be to consider
and advise the Governor concerning the fiscal
affairs of the State.
Section 3. Meetings.
(a) The Council shall meet with the Governor in
regular sessions each quarter at such times as the
Governor directs and in special session at the
Governor's call.
(b) In addition, the Council shall meet without
the Governor in regular session at such times as
the Council selects and in special session at the
call of the State Budget Officer.
(c) The Governor shall preside at all meetings of
404 8:5 NORTH CAROLINA REGISTER June 1, 1993
EXECUTIVE ORDERS
the Council at which he is present. The State
Budget Officer shall preside at all meetings of the
Council at which the Governor is not present.
Agendas for all meetings of the Council shall be
prepared by the State Budget Officer and distribut-ed
to attendees in advance of the meetings.
(d) Council members shall attend Council
meetings in person and not by surrogates.
Section 4. Invitees.
In addition to Council members, the following
are invited to attend and participate in Council
meetings as the Governor's invitees:
(a) the Executive Assistant
(b) The Deputy State Budget Officer
(c) the Lieutenant Governor or his designee
(d) the Director of Fiscal Research for the
North Carolina General Assembly or his
designee.
Section 5. Attendance at other meetings.
Council members who are not members of the
Council of State may attend meetings of the Coun-cil
of State as invitees of the Governor. Council
members who are not members of the Advisory
Budget Commission may attend meetings of the
Advisory Budget Commission as invitees of the
Governor.
increasing effectiveness and efficiency;
WHEREAS, business and industry leaders have
built up valuable expertise in using this strategy;
WHEREAS, the most effective and efficient ratio
of local public school administrators to teachers
and students is not known;
NOW THEREFORE, by the power vested in me
as Governor by the Constitution and laws of North
Carolina, IT IS ORDERED:
Section L Establishment
There is hereby established a Public School
Administrator Task Force ("Task Force").
Section 2. Membership and Terms
The Task Force shall consist of eight business
and industry leaders with experience in improving
effectiveness and efficiency in their organizations.
Two of the members shall be selected upon the
recommendation of the Speaker of the House and
two members shall be selected upon the recom-mendation
of the Senate President Pro Tem. The
remaining members shall be appointed by the
Governor. The members shall serve for six
months.
Section 6. Administration.
The Office of State Budget and Management
shall provide staff and administrative support to
the Council.
Section 7. Expenses.
Council members shall serve without compensa-tion
or reimbursement for expenditures incurred by
them in attending Council meetings.
Section 8. Rescission of prior orders.
Executive Order Number 122 by Governor James
G. Martin is hereby rescinded.
This executive order shall be effective immedi-ately.
Done in the Capital City of Raleigh, North
Carolina, this the 5th day of May, 1993.
EXECUTIVE ORDER NUMBER 12
PUBLIC SCHOOL ADMINISTRATOR
TASK FORCE
WHEREAS, this Administration has a goal of
doing more with less in our public schools by
Section 3. Duties
The Task Force shall have the following duties:
(a) Analyze existing ratios of local public
school administrators to teachers and
students;
(b) Determine the ratio necessary to effec-tively
and efficiently administer quality
education at the local level;
(c) Develop guidelines for local public
school administrators to follow in imple-menting
more effective and efficient
administration; and
(d) Report its findings and recommendations
to the Joint Legislative Education Over-sight
Committee and to the State Board
of Education.
Section 4. Administration and Expenses
The Task Force members shall be reimbursed for
necessary travel and other expenses as allowed by
North Carolina law. Administrative and staff
support for the Task Force shall be provided by
the Department of Administration.
This order is effective June 1, 1993, and shall
terminate December 1, 1993.
8:5 NORTH CAROLINA REGISTER June 1, 1993 405
EXECUTIVE ORDERS
Done in the Capital City of Raleigh, North
Carolina, this the 7th day of May, 1993.
f
I
i
406 8:5 NORTH CAROLINA REGISTER June 1, 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.
U.S. Department of Justice
Civil Rights Division
JPT:LLT:TGL:lrj Voting Section
DJ 166-012-3 P.O. Box 66128
93-0705 Washington, D.C. 20035-6128
April 27, 1993
George A. Weaver, Esq.
Lee, Reece & Weaver
P. O. Box 2047
Wilson, North Carolina 27894-2047
Dear Mr. Weaver:
This refers to the procedures for conducting the June 8, 1993, special election in Wilson 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 1, 1993.
The Attorney General does not interpose any objection to the specified change. 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 change. 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
8:5 NORTH CAROLINA REGISTER June 1, 1993 407
PROPOSED RULES
TITLE 4 - DEPARTMENT OF
COMMERCE
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Alcoholic
Beverage Control Commission intends to amend
rule cited as 4 NCAC 2R . 1903.
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 9, 1993 at the Commission Hearing
Room, 3322 Garner Road, Raleigh, NC 27610.
Jxeason for Proposed Action: To allow local ABC
boards the option to discontinue a time-consuming
procedure of placing a stamp on each individual
liquor container.
(comment Procedures: Written comments should
be directed to the Administrator of the ABC Com-mission,
P. O. Box 26687, Raleigh, NC 27611.
Comments will be received until conclusion of
hearing on July 9, 1993.
CHAPTER 2 - ALCOHOLIC BEVERAGE
CONTROL COMMISSION
SUBCHAPTER 2R - ORGANIZATIONAL
RULES: POLICIES AND PROCEDURES
SECTION .1900 - SALES OF LIQUOR
TO MIXED BEVERAGES PERMITTEES
.1903 LOCAL BOARD PRODUCT
IDENTIFICATION
Prior to the sale of any container of spirituous
liquor to the public at retail, the local board s hall
may affix to the container or the individual
container's packaging a stamp that indicates the
following:
( 1
)
local board system of sale; and
(2) local board store number.
Statutory Authority G.S. 18B-807.
iSotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Banking Com-mission
intends to adopt rules cited as 4 NCAC 3
J
.0101, .0201 - .0205, .0301 - .0306, .0401 -
.0402.
1 he proposed effective date of this action is
September 1, 1993.
1 he public hearing will be conducted at 8:30
a.m. on June 24, 1993 at the Dobbs Building,
Suite 6210, 430 North Salisbury Street, Raleigh,
North Carolina.
MXeason for Proposed Action: To interpret and
effectuate the Refund Anticipation Loan Act codi-fied
at Chapter 53, Article 20 of the North Caroli-na
General Statutes (N. C. Gen. Stat, section
53-245, et seq.) and to provide for the protection
of the borrowing public.
.
Comment Procedures: Comments may be made
orally or in writing and must be submitted no later
than Thursday, July 1 , 1993, 5:30 p.m. Comments
should be directed to: T. Mercedes Oglukian,
Special Counsel, North Carolina Banking Commis-sion,
Post Office Box 29512, 430 North Salisbury
Street, Raleigh, North Carolina 27626-0512 (Tel:
(919) 733-3016; Fax: (919) 733-6918).
CHAPTER 3 - BANKING COMMISSION
SUBCHAPTER 3J - REFUND
ANTICIPATION LOAN
SECTION .0100 - ADMINISTRATIVE
.0101 DEFINITIONS; FILINGS
(a) As used in these Rules, unless the context
clearly requires otherwise:
(1 ) "Applicant" shall have the same mean-ing
as set forth in G.S. 53-246(1).
i2> "Commission" shall have the same
£3}
<4j
meaning as set forth in G.S. 53-246(2).
"Commissioner" shall have the same
meaning as set forth in G.S. 53-246(3).
"Controlling person" shall mean any
person as defined herein who owns or
holds with the power to vote 10% or
more of the equity securities of the
registrant, or who has the power to
direct the management and policy of the
408 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
registrant. returns directlv to the Internal Revenue
£5} "Creditor" shall have the same meaning Service. This term shall include per-as
set forth in G.S. 53-246(4). sons who receive information to be
16) "Creditor fee" shall mean the fee im- reformatted and transmitted to the
posed bv the creditor which funds the Internal Revenue Service, i.e., third-refund
anticipation loan in consideration partv transmitters.
£21
18]
for funding the refund anticipation loan.
"Debtor" shall have the same meaning
as set forth in G.S. 53-246(5).
"Electronic filing fee" shall mean the
(b) An application for registration or anv report,
notice, form or other document which is required
bv law or rule to be filed with the Commissioner
shall be addressed as follows:
fee imposed bv the facilitator in consid-eration
for the electronic filing of a tax Commissioner of Banks
return. Post Office Box 29512
£9} "Executive officer" shall have the same Raleigh, North Carolina 27626-0512
meaning as such term is defined in
Regulation "0" promulgated bv the
Board of Governors of the Federal
Statutory Authority G.S. 53-245; 53-246; 53-248;
53-253; 150B-21.2.
Reserve System, and codified in the
Code of Federal Regulations at Title SECTION .0200 - APPLICATION AND
(10)
12, Chapter II, Part 215.
"Facilitator" shall have the same mean-ing
as set forth in G.S. 53-246(6).
RENEWAL
.0201 APPLICATION FORREGISTRATION
fll) "Facilitator loan fee" shall mean the fee AS A FACILITATOR
(12)
imposed by the facilitator in consider-ation
for assisting the debtor in obtain-ing
the refund anticipation loan.
"Income tax return preparation fee"
shall mean the fee imposed bv a person
in consideration for preparation of the
debtor's tax returns.
(a) Anv person who would like to engage in
business as a facilitator pursuant to the Refund
Anticipation Loan Act shall first be registered with
the Commissioner, unless such person is exempt
from registration pursuant to G.S. 53-247(c) or
G.S. 53-254. An application for registration shall
be obtained from the Commissioner and shall be
(13) "Loan-related fee" shall mean anv fee
other than a creditor fee, facilitator loan
filed pursuant to Rule .0101(b) of this Subchapter,
(b) The application for registration as a facilita-fee
or electronic filing fee paid bv the
debtor for transmittal to third persons
who provide services in connection with
tor shall include the following:
(1) A description of the applicant's organi-zational
structure, including the name.
the refund anticipation loan. business and residence address and
(14) "Person" shall have the same meaning
as set forth in G.S. 53-246(7).
business telephone number of the appli-cant,
its partners, executive officers.
(15)
(16)
"Refund anticipation loan" shall have
the same meaning as set forth in G.S.
53-246(8).
"Refund Anticipation Loan Act" shall
mean the Refund Anticipation Loan Act
codified at Chapter 53, Article 20 of
the North Carolina General Statutes
directors and controlling persons;
(2) Copies of the following documents,
where applicable:
(A) The applicant's Articles of Incorpora-tion,
or general or limited partnership
agreement;
(B) A Certificate of Existence or Certifi-
£iD
(G.S. 53-245, et seq.).
"Refund anticipation loan fee" shall
have the same meaning as set forth in
G.S. 53-246(9) and shall include a
cate of Good Standing not more than
90 davs old from the applicant's state
of incorporation;
(C) A Certificate of Authority to do busi-creditor
fee, facilitator loan fee, and ness in this State;
loan-related fee as defined herein. (D) A copv of the applicant's Certificate
(18) "Registrant" shall have the same mean- of Assumed Name;
(19)
ing as set forth in G.S. 53-246(10).
"Transmitter" shall mean anv person as
defined herein who transmits electronic
(3) A description of the applicant's opera-tions,
including the names and address-es
of the banks which will fund refund
8:5 NORTH CAROLINA REGISTER June 1, 1993 409
PROPOSED RULES
14)
(5)
16)
ID
m
19)
(10)
IT
(12)
(13)
anticipation loans to its customers, and
the names and addresses of transmitters
and any other intermediary parties
involved in the process of facilitating
refund anticipation loans;
A description of the business(es) in
which the applicant is primarily en-gaged;
The applicant's Electronic Filer Identi-fication
Number (EFIN) as provided by
the Internal Revenue Service;
Proof that the applicant has been ac-cepted
by the Internal Revenue Service
to participate in its electronic filing
program for the present tax year;
Disclosure of any civil judgments en-tered
against the applicant, its partners,
executive officers, directors or control-ling
persons during the past 10 years
which have remained partially or whol-
]y_ unpaid;
Disclosure of any civil proceedings
pending against or civil judgments
entered against the applicant, its part-ners,
executive officers, directors or
controlling persons which involve fraud
or dishonesty;
Disclosure of any felony convictions
entered against the applicant, its part-ners,
executive officers, directors or
controlling persons;
Disclosure of any misdemeanor convic-tions
entered against the applicant, its
partners, executive officers, directors or
controlling persons which involve theft,
fraud, or dishonesty;
Disclosure of any enforcement proceed-ing
brought against the applicant, its
partners, executive officers, directors or
controlling persons by any agency or
department of this State, the Federal
government or any other state which
involves the revocation or suspension of
any business license;
Disclosure of whether the applicant,
any partner, executive officer, director,
or controlling person has been denied
acceptance in or suspended from the
Electronic Filing Program of the Inter-nal
Revenue Service;
Disclosure of whether the applicant is,
or has ever been, the subject of the
following proceedings: bankruptcy,
assignment for the benefit of creditors,
receivership, conservatorship, or simi-
(14)
(15)
lar proceeding;
Three business references, including
one bank reference;
The address of each office in this State
at which the applicant intends to facili-tate
refund anticipation loans.
(c) The application for registration as a facilita-tor
shall be accompanied by a fee made payable to
the Commissioner in the amount set forth in G.S.
53-248(a).
(d) The application shall be ui writing and
verified.
(e) Incomplete application files shall be closed
and deemed denied without prejudice when the
applicant has not submitted information requested
by the Commissioner within 30 days of request.
Statutory- Authority G. S. 53-245(b); 53-247(a); 53-
248(a); 53-253; 150B-21.2.
.0202 ISSUANCE OF A CERTIFICATE OF
REGISTRATION
Upon receipt of a completed application and
payment of the fee required by G.S. 53-248(a), the
Commissioner shall review the application and
conduct such investigation of the applicant as
necessary to make the findings required by G.S.
53-248(a). If the Commissioner finds that the
applicant has met the conditions of G.S. 53-248(a),
the Commissioner shall issue the applicant a
renewable Certificate of Registration.
Statutory Authority G.S. 53-248(a), (b); 53-253;
150B-21.2.
.0203 EXPIRATION AND RENEWAL
(a) A Certificate of Registration shall be valid
from the date of issuance and, unless timely
renewed, shall expire on December 31 of each
year.
(b) Thirty days prior to the date of expiration,
each registrant that would like to renew its Certifi-cate
of Registration shall submit a renewal applica-tion
to the Commissioner. The renewal applica-tion
shall be obtained from the Commissioner and
shall be filed pursuant to Rule .0101(b) of this
Subchapter.
(c) Unless the registrant timely renews its
Certificate of Registration, the registrant shall not,
after the date of expiration, engage in business as
a facilitator in this State.
(d) If the Certificate of Registration expires, the
registrant shall apply for a Certificate of Registra-tion
pursuant to Rule .0201 of this Section if it
wishes to engage in business as a facilitator in this
410 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
State.
Statutory Authority G.S. 53-248(b); 53-253; 150B-
21.2.
.0204 APPLICATION FOR RENEWAL OF
CERTIFICATE OF REGISTRATION
(a) The application for renewal of the Certificate
of Registration shall include the following:
(1) Where applicable, any amendments to
the application for registration filed
pursuant to Rule .0201 of this Subchap-ter;
(2) A written verification of the accuracy
of the application for Certificate of
Registration filed pursuant to Rule
,0201 of this Subchapter and any
amendments filed pursuant to Rules
.0204(a)(1) and .0305 of this Subchap-ter.
(b) The application for renewal of the Certificate
of Registration shall be accompanied by a fee
made payable to the Commissioner in the amount
set forth in G.S. 53-248(b) for each existing office
and a fee made payable to the Commissioner in the
amount set forth in G.S. 53-248(a) for each new
office where the registrant intends to facilitate
refund anticipation loans during the succeeding
year.
(c) Incomplete applications for renewal of the
Certificate of Registration shall be closed and the
application for renewal deemed denied without
prejudice when the registrant has not submitted
information requested by the Commissioner within
30 days of such request.
Statutory Authority G.S. 53-248(a), (b); 53-253;
150B-21.2.
partnership:
(A) A change in one of the registrant's
general partners;
(B) The conversion of the general partner-ship
into a limited partnership, corpo-ration
or proprietorship;
(C) The conversion of the limited partner-ship
into a general partnership, corpo-ration
or proprietorship;
(3) If the registrant is a proprietor:
(A) The conversion of the proprietorship
into a general or limited partnership
or corporation;
(B) The sale of all of the assets of the
registrant's business to another per-son.
(c) Upon a change in organization as set forth in
Paragraph (b) of this Rule, the Certificate of
Registration shall become void and the registrant
shall surrender its Certificate of Registration to the
Commissioner within 30 days of such change. If
the entity which results from the change in the
registrant's organization would like to engage in
business as a facilitator in this State, it shall apply
for a Certificate of Registration pursuant to Rule
.0201 of this Section.
Statutory Authority G.S. 53-253; 150B-21.2.
SECTION .0300 - OPERATIONS,
REPORTING REQUIREMENTS,
NOTIFICATIONS
.0301 CHECK CASHING SERVICES
A registrant which offers check cashing services
shall not require a debtor to use such services for
cashing a check which represents the proceeds of
a refund anticipation loan.
.0205 NONTRANSFERABILITY OF
CERTIFICATE OF REGISTRATION
(a) A Certificate of Registration shall be neither
transferable nor assignable.
(b) The circumstances under which the Commis-sioner
shall deem a change in the registrant's
organizational structure to constitute a transfer or
assignment of the Certificate of Registration shall
include, but not be limited to, the following:
(1) If the registrant is a corporation:
(A) A change in ownership of 50% or
more of the registrant's stock;
(B) The conversion of the corporation into
a general or limited partnership or
proprietorship;
(2) If the registrant is a general or limited
Statutory Authority G.S. 53-250(5); 53-253; 150B-
21.2.
.0302 RECORD AND BOOKKEEPING
REQUIREMENTS
(a) A registrant shall maintain the following
records with respect to each application for a
refund anticipation loan in this State. These
records shall be kept in an office or offices of the
registrant in this State. This Rule shall not be
interpreted to require a registrant to maintain one
central office at which all records required herein
are located:
(1) Name of applicant for a refund anticipa-tion
loan;
(2) Social security number of applicant for
8:5 NORTH CAROLINA REGISTER June 1, 1993 411
PROPOSED RULES
a refund anticipation loan;
(3) Date of application;
(4) Disposition of application, e.g., wheth-er
loan was funded, denied, etc.;
(5) The gross amount of the refund antici-pation
loan;
(6) The amount of the creditor fee;
(7) The amount of the facilitator loan fee,
if any;
(8) The amount of the loan-related fees, if
any;
(9) The amount of the electronic filing fee;
10) The amount of the income tax return
preparation fees
,
if any;
The amount of refund anticipation loan
proceeds disbursed by the registrant to
the debtor;
(12) The date on which refund anticipation
loan proceeds were disbursed by the
registrant to the debtor;
( 13) The identity of the registrant's execu-tive
officer, partner or employee origi-nating
the application for the refund
anticipation loan;
(14) The number, identity of drawer and
amount of the check delivered to the
debtor in payment of the proceeds of
the refund anticipation loan;
( 15) A copy of Internal Revenue Service
Form No. 8453 or any successor Form.
(b) An original (where the drawer is the regis-trant)
or a copy of all checks delivered by the
registrant to each debtor in payment of the pro-ceeds
of the refund anticipation loan shall be
available upon request by the Commissioner.
(c) All records required by Paragraph (a) of this
Rule may be maintained in any reasonable manner
that the registrant selects. Where applicable, the
information required by Paragraph (a) of this Rule
may be maintained by the retention of copies of
forms used to comply with state or federal statutes,
rules and regulations.
(d) All records required to be kept pursuant to
Paragraph (a) of this Rule may be maintained in
the form of magnetic tape, magnetic disk or other
form of computer, electronic or microfilm media.
However, records kept in this manner shall be
convertible into clearly legible, tangible documents
within 24 hours of request. This time period shall
be extended for an additional reasonable time by
the Commissioner if he finds that good cause for
extension exists.
(e) All records required to be kept pursuant to
Paragraph (a) of this Rule shall be kept for a
period of at least three years.
Statutory Authority G.S. 53-249; 53-250; 53-253;
150B-21.2.
.0303 FILING AND POSTING OF FEE
SCHEDULE
(a) The fee schedule required by G.S. 53-249(a)
shall be obtained from the Commissioner and shall
be filed pursuant to Rule .0101 (b) of this Subchap-ter.
(b) The fee schedule referenced in Paragraph (a)
of this Rule shall include the following fees:
(1) The creditor fee;
(2) The facilitator loan fee;
(3) Any loan-related fee;
(4) The electronic filing fee.
(c) Pursuant to G.S. 53-249(c), the registrant
shall display the following fees:
(1) The creditor fee;
(2) The facilitator loan fee;
(3) All loan-related fees;
(4) The electronic filing fee.
Statutory Authority G.S. 53-249(a), (c); 53-253;
150B-21.2.
.0304 DISCLOSURES
(a) For the purposes of G.S. 53-249(d)(l), (2),
the registrant shall disclose to the debtor the
following fees:
(1) The creditor fee;
12}
(3}
14)
(5)
The facilitator loan fee;
All loan-related fees;
The electronic filing fee;
The total dollar amount of the fees
disclosed pursuant to Subparagraphs
(a)(l)-(3) of this Rule.
£b] For the purposes of G.S. 53-249(d)(5), the
term "appropriate taxing authority" shall mean the
Internal Revenue Service.
(c) All disclosures made pursuant to G.S. 53-
249(d) shall be made on a form or forms detached
from the application. The registrant shall provide
an applicant for a refund anticipation loan with a
copy of ajj such disclosure forms. In the case of
an application for a refund anticipation loan by a
married couple who are filing a joint tax return,
the registrant may satisfy this provision by provid-ing
one copy of all such disclosure forms to the
couple.
Statutory Authority G.S. 53-249(d); 53-253; 150B-
21.2.
.0305 AMENDMENTS TO APPLICATION
A registrant shall maintain a current application
412 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
with the Commissioner. If there is a change in the
information contained in the application, the
registrant shall notify the Commissioner within 30
days of the effective date of such change. Notifi-cation
to the Commissioner shall be accomplished
either by letter or by revision of the applicable
pages of the application filed pursuant to Rule
.0201 of this Subchapter. If the registrant elects to
comply with this Rule by revising its application,
it shall obtain the applicable pages of the applica-tion
from the Commissioner.
Statutory Authority G.S. 53-253; 150B-21.2.
.0306 CESSATION OF OPERATIONS
(a) A registrant shall notify the Commissioner in
writing of its decision to cease operations as a
facilitator in this State.
(b) A registrant shall surrender its Certificate of
Registration to the Commissioner no later than 30
days after it has ceased operations in this State.
Statutory Authority G.S. 53-253; 150B-21.2.
SECTION .0400 - ENFORCEMENT
.0401 HEARINGS
Any hearing conducted pursuant to G.S. 53-251
shall proceed in accordance with 4 NCAC 3B
.0200, et seq., and G.S. 150B.
Statutory Authority G.S. 53-251; 53-253; 150B-
21.2.
.0402 EXAMINATIONS, AUDITS
The Commissioner may conduct or cause to be
conducted an examination or audit of the books
and records of any registrant at any time when
considered proper.
Statutory Authority G.S. 53-253; 53-254; 150B-
21.2.
1 he proposed effective date of this action is
October 1, 1993.
lXeason for Proposed Action: To clarify capacity
levelforfacilities licensed as Residential Treatment
Centers, which provide services to children or
adolescents.
Ksomment Procedures: Written comments must be
submitted to Charlotte Tucker, Division of Mental
Health, Developmental Disabilities and Substance
Abuse Services, 325 N. Salisbury Street, Raleigh,
N. C. 27603 prior to July 2, 1993. Fiscal informa-tion
on this Rule is available, upon request, from
the Division.
tLditor's Note: An agency may not adopt a rule
that differs substantially from the text of a pro-posed
rule published in the Register, unless the
agency publishes the text of the proposed differ-ent
rule and accepts comments on the new text
for at least 30 days after the publication of the
new text.
tLditor's Note: This Rule was filed as a tempo-rary
rule effective May 10, 1993 for a period of
180 days or Until the Permanent Rule Becomes
Effective, Whichever is Sooner.
CHAPTER 14 - MENTAL HEALTH:
GENERAL
SUBCHAPTER 14L - LICENSURE RULES
FOR MENTAL HEALTH FACILITIES
SECTION .0600 - RESIDENTIAL
TREATMENT FOR CHILDREN AND
ADOLESCENTS WHO ARE MENTALLY
ILL
TITLE 10 - DEPARTMENT OF
HUMAN RESOURCES
iSotice is hereby given in accordance with G.S.
150B-21.2 that the Commission for Mental Health,
Developmental Disabilities and Substance Abuse
Services intends to amend rule cited as 10 NCAC
14L .0602, with changes from the proposed text
noticed in the Register. Volume 8, Issue 1 , pages
7-21, and Volume 7, Issue 23, pages 2550 -
2551.
.0602 CAPACITY
(a) Each facility shall serve no more than;
(1) nine children; or
(2) a«d nine adolescents^ at any one time .
(b) Any facility currently licensed as a Residen-tial
Treatment Center under this Section on the
effective date of this Rule, and providing services
to more than nine children or nine adolescents,
may continue to provide services at no more than
the facility's license capacity as of the effective
date of this Rule.
(c) At no time shall a Residential Treatment
8:5 NORTH CAROLINA REGISTER June 1, 1993 413
PROPOSED RULES
Center serve more than 24 children or 24 adoles-cents.
Statutory Authority G.S. 122C-26; 143B-147.
Notice is hereby given in accordance with G.S.
150B-21.2 that the DHR/Division of Medical
Assistance intends to amend rules cited as 10
NCA C 50B .0311, .0313, . 0403 and . 0406.
1 he proposed effective date of this action
September 1, 1993.
is
1 he public hearing will be conducted at 1:30
p.m. on July 2, 1993 at the North Carolina Divi-sion
of Medical Assistance, 1985 Umstead Drive,
Room 132, Raleigh, NC 27603.
MXeason for Proposed Action:
10 NCAC 50B .0311 & .0313 - Amendments allow
for an exclusion from income and resources when
there is an approved plan for aged, blind, and
disabled individuals to achieve self support
(PASS).
10 NCAC 50B .0403 - Rule necessary to allow
exemption of up to $12,000 worth of property
contiguous to the homesite if owned by the appli-cant,
regardless of whether the applicant owns the
homesite property.
10 NCAC 50B .0406 - Rule supports the automa-tion
of the deductible balance collection project
and establishes an order for Medicaid covered
services incurred on the same day.
Comment Procedures: Written comments con-cerning
these amendments must be submitted by
July 2, 1993, to: Division of Medical Assistance,
1985 Umstead Drive, Raleigh, NC 27603 ATTN:
Clarence Ervin, APA Coordinator. Oral comments
may be presented at the hearing. In addition, a
fiscal impact statement is available upon written
request from the same address.
CHAPTER 50 - MEDICAL ASSISTANCE
SUBCHAPTER 50B - ELIGIBILITY
DETERMINATION
SECTION .0300 - CONDITIONS
FOR ELIGIBILITY
.0311 RESERVE
North Carolina has elected the option under
Section 1902(f) of the Social Security Act to limit
Medicaid eligibility for the aged, blind or the
disabled to individuals who meet eligibility re-quirements
more restrictive than those under
Supplemental Security Income. Applicants for and
recipients of Medicaid shall use their own resourc-es
to meet their needs for living costs and medical
care to the extent that such resources can be made
available. Certain resources shall be protected to
meet specific needs such as burial and transporta-tion
and a limited amount of resources shall be
protected for emergencies.
( 1 ) The value of resources currently available
to any budget unit member shall be con-sidered
in determining financial eligibili-ty.
A resource shall be considered avail-able
when it is actually available and
when the budget unit member has a legal
interest in the resource and he, or some-one
acting in his behalf, can take any
necessary action to make it available.
(a) Resources shall be excluded in deter-mining
financial eligibility when the
budget unit member having a legal
interest in the resources is incompetent
unless:
(i) A guardian of the estate, a general
guardian or an interim guardian has
been lawfully appointed and is able to
act on behalf of his ward in North
Carolina and in any state in which
such resources are located; or
(ii) A durable power of attorney, valid in
North Carolina and in any state in
which such resource is located, has
been granted to a person who is au-thorized
and able to exercise such
power.
(b) When there is a guardian, an interim
guardian, or a person holding a valid,
durable power of attorney for a budget
unit member, but such person is unable,
fails, or refuses to act promptly to
make the resources actually available to
meet the needs of the budget unit mem-ber,
a referral shall be made to the
county department of social services of
a determination of whether the guardian
or attorney in fact is acting in the best
interests of the member and if not,
contact the clerk of court for interven-
414 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
)
tion. The resources shall be excluded
in determining financial eligibility
pending action by the clerk of court.
(c) When a Medicaid application is filed on
behalf of an individual who:
(i) is alleged to be mentally incompetent,
(ii) has or may have a legal interest in a
resource that affects the individual's
eligibility, and
(iii) does not have a representative with
legal authority to use or dispose of the
individual's resources, the individual's
representative or family member shall
be instructed to file within 30 calen-dar
days a judicial proceeding to
declare the individual incompetent and
appoint a guardian. If the representa-tive
or family member either fails to
file such a proceeding within 30
calendar days or fails to timely con-clude
the proceeding, a referral shall
be made to the services unit of the
county department of social services
for guardianship services. If the
allegation of incompetence is support-ed
by a physician's certification or
other competent evidence from sourc-es
including but not limited to physi-cians,
nurses, social workers, psy-chologists,
relatives, friends or others
with knowledge of the condition of
the individual, the resources shall be
excluded except as provided in Sub-items
(l)(d) or (e) of this Rule.
(d) The budget unit member's resources
shall be counted in determining his
eligibility for Medicaid beginning the
first day of the month following the
month a guardian of the estate, general
guardian or interim guardian is appoint-ed,
provided that after the appointment,
property which cannot be disposed of
or used except by order of the court
shall continue to be excluded until
completion of the applicable procedures
for disposition specified in Chapters 1
or 35A of the North Carolina General
Statutes
.
(e) When the court rules that the budget
unit member is competent or no ruling
is made because of the death or recov-ery
of the member, his resources shall
be counted except for periods of time
for which it can be established by com-petent
evidence from sources including
but not limited to physicians, nurses,
social workers, psychologists, relatives,
friends or others with knowledge of the
condition of the individual that the
member was in fact incompetent. Any
such showing of incompetence is sub-ject
to rebuttal by competent evidence
as specified herein and in Sub-item
(l)(c) of this Rule.
(2) The limitation of resources held for
reserve for the budget unit shall be as
follows:
(a) For Family and Children's related
categorically needy cases, one thousand
dollars ($1,000) per budget unit;
(b) For aged, blind or disabled cases and
Family and Children's related medically
needy cases, one thousand five hundred
dollars ($1,500) for a budget unit of
one person, two thousand two hundred
fifty dollars ($2,250) for a budget unit
of two persons and increases of one
hundred dollars ($100.00) for each
additional person in the budget unit
over two, not to exceed a total of three
thousand, fifty dollars ($3,050).
(3) If the value of countable resources of the
budget unit exceeds the reserve allowance
for the unit, the case shall be ineligible:
(a) For Family and Children's related cases
and aged, blind or disabled cases pro-tected
by grandfathered provisions, and
medically needy cases not protected by
grandfathered provision, eligibility shall
begin on the day countable resources
are reduced to allowable limits or ex-cess
income is spent down, whichever
occurs later;
(b) For categorically needy aged, blind or
disabled cases not protected by grand-fathered
provisions, eligibility shall
begin no earlier than the month count-able
resources are reduced to allowable
limits as of the first moment of the first
day of the month.
(4) Resources counted in the determination
of financial eligibility for categorically
needy and medically needy aid to the
aged, blind, or disabled cases protected
by grandfathered provisions are:
(a) Cash on hand;
(b) The current balance of savings ac-counts,
except savings of a student
saving his earnings for educational
purposes;
8:5 NORTH CAROLINA REGISTER June 1, 1993 415
PROPOSED RULES
(c) The current balance of checking ac-counts;
(d) Cash value of life insurance policies
when the total face value of all policies
that accrue cash value exceeds one
thousand five hundred dollars ($1,500);
(e) Equity in motor vehicles, including
motor homes, determined to be
non-essential according to Rule .0403
of this Subchapter;
(f) Equity in excess of one thousand dol-lars
($1,000) in motor vehicles, includ-ing
motor homes, determined to be
essential according to Rule .0403 of
this Subchapter;
(g) Stocks, bonds, mutual fund shares,
certificates of deposit and other liquid
assets;
(h) Negotiable and salable promissory notes
and loans;
(i) Trust funds;
(j) The portion of lump sum payments
remaining after the month of receipt;
(k) Individual Retirement Accounts or other
retirement accounts or plans;
(1) Equity in real property not used as the
homesite or not producing an income;
(m) Value of burial spaces other than spaces
designated for the eligible individual,
the eligible individual's spouse, and the
eligible individual's immediate family
which includes the eligible individual's
minor and adult children, stepchildren,
and adopted children, brothers, sisters,
parents, adoptive parents, and the
spouses of those persons;
(n) Salable remainder interest in life-estate
property not used as the budget unit's
homesite;
(o) Patient accounts in long term care
facilities.
(5) Resources counted in the determination
of financial eligibility for aid to categori-cally
needy aged, blind or disabled cases
not protected by grandfathered provisions
are:
(a) Cash on hand;
(b) The balance of savings accounts, except
savings of a student saving his earnings
for educational purposes;
(c) The balance of savings account, except
for aged, blind or disabled individuals
who have a plan for achieving self-support
(PASS) that is approved by the
Social Security Administration;
(d) {e) The balance of checking accounts
less the current monthly income which
had been deposited to meet the budget
unit's needs when reserve was verified
or lump sum income from self-employ-ment
deposited to pay annual expenses;
(e) fd) Cash value of life insurance policies
when the total face value of all policies
that accrue cash value exceeds one
thousand five hundred dollars ($1,500);
(f) (e) Trust funds;
(g) (f) Stocks, bonds, mutual fund shares,
certificates of deposit and other liquid
assets;
(h) fg) Negotiable and salable promissory
notes and loans;
(i) fk) Revocable burial contracts and
burial trusts;
(j) i+) The portion of lump sum payments
remaining after the month of receipt;
(k) if) Individual Retirement Accounts or
other retirement accounts or plans;
(1) fk-) Patient accounts in long term care
facilities;
(m) {ty Equity in motor vehicles determined
to be non-essential under Rule .0403 of
this Subchapter or, if no motor vehicle
is excluded as essential, any equity in
excess of four thousand five hundred
dollars ($4,500) in a motor vehicle;
(n) fm-) Equity in real and/or personal
property when the combined equities is
six thousand dollars ($6,000) or less
and the property does not yield a net
annual income of at least six percent of
the equities;
(o) fa) Equity in real and/or personal prop-erty
when the combined equities exceed
six thousand dollars ($6,000);
(p) {e) Equity in personal property, subject
to (5) (m) and (n) of this Rule, is limit-ed
to:
(i) Mobile homes not used as homesite,
(ii) Boats, boat trailers and boat motors,
(iii) Campers,
(iv) Farm and business equipment;
(q) (p) Equity in real property, subject to
(5) (m) and (n) of this Rule, is limited
to:
(i) Value of burial spaces other than
spaces designated for the eligible
individual, the eligible individual's
spouse, and the eligible individual's
immediate family which includes the
eligible individual's minor and adult
416 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
children, stepchildren, and adopted
children, brothers, sisters, parents,
adoptive parents, and the spouses of
those persons;
(ii) Fee simple interest;
(iii) Salable remainder interest;
(iv) Tenancy by the entireties interest
only.
(6) Resources counted in the determination
of financial eligibility for aid to medically
needy aged, blind or disabled cases not
protected by grandfathered provisions
are:
(a) Cash on hand;
(b) The balance of savings accounts, except
savings of a student saving his earnings
for educational purposes;
(c) The balance of savings accounts, except
for aged, blind or disabled individuals
who have a plan for achieving self-support
(PASS) that is approved by the
Social Security Administration;
(d) {e) The balance of checking accounts
less the current monthly income which
had been deposited to meet the budget
unit's needs when reserve was verified
or lump sum income from self-employ-ment
deposited to pay annual expenses;
(e) {d) Cash value of life insurance policies
when the total face value of all policies
that accrue cash value exceeds one
thousand dollars ($1,000);
(f) (e) Trust funds;
(g) 0) Stocks, bonds, mutual fund shares,
certificates of deposit and other liquid
assets;
(h) fg-) Negotiable and salable promissory
notes and loans;
(i) fh-) Revocable burial contracts and
burial trusts;
(i) {t) The portion of lump sum payments
remaining after the month of receipt;
(k) £}) Individual Retirement Accounts or
other retirement accounts or plans;
(1) fk) Patient accounts in long term care
facilities;
(m) {+) Equity in motor vehicles determined
to be non-essential under Rule .0403 of
this Subchapter or, if no motor vehicle
is excluded as essential, any equity in
excess of four thousand five hundred
dollars ($4,500) in a motor vehicle;
(n) fm) Equity in real property and person-al
property that does not produce a net
annual income;
(0) (ft) Equity in personal property, subject
to (6)(m) of this Rule, is limited to:
(i) Mobile homes not used as homesite,
(ii) Boats, boat trailers and boat motors,
(iii) Campers,
(iv) Farm and business equipment;
(p) (o) Equity in real property, subject to
(6)(m) of this Rule, is limited to interest
in real estate other than that used as the
budget unit's homesite and includes:
(i) Fee simple interest,
(ii) Tenancy by the entireties interest
only,
(iii) Salable remainder interest,
(iv) Value of burial spaces other than
spaces designated for the eligible
individual, the eligible individual's
spouse, and the eligible individual's
immediate family which includes the
eligible individual's minor and adult
children, stepchildren, and adopted
children, brothers, sisters, parents,
adoptive parents, and the spouses of
those persons.
(7) Resources counted in the determination
of financial eligibility for categorically
needy Family and Children's related
cases are:
(a) Cash on hand;
(b) The balance of savings accounts, in-cluding
savings of a student saving his
earnings for school expenses;
(c) The balance of checking accounts less
the current monthly income which had
been deposited to meet the budget unit's
monthly needs when reserve was veri-fied;
(d) The portion of lump sum payments
remaining after the month of receipt;
(e) Cash value of life insurance policies
owned by the budget unit;
(f) Revocable trust funds;
(g) Stocks, bonds, mutual fund shares,
certificates of deposit and other liquid
assets;
(h) Negotiable and salable promissory notes
and loans;
(i) Revocable pre-paid burial contracts;
(j) Patient accounts in long term care
facilities;
(k) Individual Retirement Accounts or other
retirement accounts or plans;
(1) Equity in non-essential personal proper-ty
limited to:
(i) Mobile homes not used as home,
8:5 NORTH CAROLINA REGISTER June 1, 1993 417
PROPOSED RULES
(ii) Boats, boat trailers and boat motors,
(iii) Campers,
(iv) Farm and business equipment;
(v) Equity in excess of one thousand five
hundred dollars ($1 ,500) in one motor
vehicle determined to be essential
under Rule .0403 of this Subchapter;
(vi) Equity in motor vehicles determined
to be non-essential under Rule .0403
of this Subchapter;
(m) Equity in real property is limited to
interest in real estate other than that
used as the budget unit's homesite and
is limited to:
(i) Fee simple interest,
(ii) Tenancy by the entireties interest
only,
(iii) Salable remainder interest,
(iv) Value of burial plots.
(8) Resources counted in the determination
of financial eligibility for medically
needy Family and Children's related
cases are:
(a) Cash on hand;
(b) The balance of savings accounts, in-cluding
savings of a student saving his
earnings for school expenses;
(c) The balance of checking accounts less
the currently monthly income which
had been deposited to meet the budget
unit's monthly needs when reserve was
verified or lump sum income from
self-employment deposited to pay annu-al
expenses;
(d) Cash value of life insurance policies
when the total face value of all policies
that accrue cash value exceeds one
thousand five hundred dollars ($1 ,500);
(e) Trust funds;
(f) Stocks, bonds, mutual fund shares,
certificates of deposit and other liquid
assets;
(g) Negotiable and salable promissory notes
and loans;
(h) Revocable prepaid burial contracts;
(i) Patient accounts in long term care
facilities;
(j) Individual Retirement Accounts or other
retirement accounts or plans;
(k) Equity in non-essential, non-income
producing personal property limited to:
(i) Mobile home not used as home,
(ii) Boats, boat trailers and boat motors,
(iii) Campers,
(iv) Farm and business equipment.
(v) Equity in motor vehicles determined
to be non-essential under Rule .0403
of this Subchapter;
(1) Equity in real property is limited to
interest in real estate other than that
used as the budget unit's homesite and
is limited to:
(i) Fee simple interest,
(ii) Tenancy by the entireties interest
only,
(iii) Salable remainder interest,
(iv) Value of burial plots.
Authority G.S. 108A-54; 108A-55; 108A-58; 42
U.S.C. 703, 704 1396; 42 C.F.R. 435.121; 42
C.F.R. 435.210; 42 C.F.R. 435.711; 42 C.F.R.
435.712; 42 C.F.R. 435.734; 42 C.F.R. 435.823;
42 C F. R. 435. 840; 42 C F. R. 435. 841; 42 C. F. R.
435-845; 42 C.F.R. 445.850; 42 C.F.R. 435.851;
45 C. F. R. 233. 20; 45 C. F. R. 233. 51
.
.0313 INCOME
(a) Income from the following sources shall be
counted in the calculation of financial eligibility:
(1) Unearned.
(A) RSDI,
(B) Veteran's Administration,
(C) Railroad Retirement,
(D) Pensions or retirement benefits,
(E) Workmen's Compensation,
(F) Unemployment Compensation,
(G) Support Payments,
(H) Contributions,
(I) Dividends or interest from stocks,
bonds, and other investments,
(J) Trust fund income,
(K) Private disability or employment
compensation,
(L) That portion of educational loans,
grants, and scholarships for mainte-nance,
(M) Work release,
(N) Lump sum payments,
(O) Military allotments,
(P) Brown Lung Benefits,
(Q) Black Lung Benefits,
(R) Trade Adjustment benefits,
(S) SSI when the client is in long term
care,
(T) VA Aid and Attendance when the
client is in long term care,
(U) Foster Care Board payments in excess
of state maximum rates for M-AF
clients who serve as foster parents,
(V) Income allocated from an institutional-
418 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
(W)
(X)
(Y)
(Z)
(2)
(A)
ized spouse to the client who is the
community spouse as stated in 42
U.S.C. 1396r-5(d),
Income allowed from an institutional-ized
spouse to the client who is a
dependent family member as stated in
42 U.S.C. 1396r-5(d),
Sheltered Workshop Income,
Loans if repayment of a loan and not
counted in reserve.
Income deemed to Family and
Children's clients.
Earned Income.
wages, salaries, and
(B)
(C)
(D)
(E)
(F)
(G)
income including
(H)
(I)
(3)
Income from
commissions,
Farm Income,
Small business
self-employment,
Rental income,
Income from roomers and boarders,
Earned income of a child client who
is a part-time student and a full-time
employee,
Supplemental payments in excess of
state maximum rates for Foster Care
Board payments paid by the county to
Family and Children's clients who
serve as foster parents,
Earned income tax credits for the
Aged, Blind or Disabled only,
VA Aid and Attendance paid to a
budget unit member who provides the
aid and attendance.
Additional sources of income not listed
in (1) or (2) of this Rule will be consid-ered
available unless specifically ex-cluded
by (b) of this Rule, or by regu-lation
or law.
(b) Income from the following sources shall not
be counted in the calculation of financial eligibili-ty:
Earned income of a child who is a
part-time student but is not a full-time
employee;
Earned income of a child who is a
full-time student;
Incentive payments and training allow-ances
made to WIN training partici-pants;
Payments for supportive services or
reimbursement of out-of-pocket expens-es
made to volunteers serving as VIS-TA
volunteers, foster grandparents,
senior health aides, senior companions,
Service Corps of Retired Executives,
(1)
(2)
(3)
(4)
Active Corps of Executives, Retired
Senior Volunteer Programs, Action
Cooperative Volunteer Program, Uni-versity
Year for Action Program, and
other programs under Titles I, II, and
III of Public Law 93-113;
(5) Foster Care Board payments equal to or
below the state maximum rates for
Family and Children's clients who
serve as foster parents;
(6) Earnings of M-AABD clients who are
participating in ADAP (Adult Develop-mental
Activity Program) training
programs for a specified period;
(7) Income that is unpredictable, i.e.,
unplanned and arising only from time to
time. Examples include occasional
yard work, sporadic babysitting, etc.;
(8) Relocation payments;
(9) Value of the coupon allotment under
the Food Stamp Program;
(10) Food (vegetables, dairy products, and
meat) grown by or given to a member
of the household. If home grown pro-duce
is sold, count as earned income;
(11) Benefits received from the Nutrition
Program for the Elderly;
(12) Food Assistance under the Child Nutri-tion
Act and National School Lunch
Act;
(13) Assistance provided in cash or in kind
under any governmental, civic, or
charitable organization whose purpose
is to provide social services or voca-tional
rehabilitation. This includes
V.R. incentive payments for training,
education and allowance for depen-dents,
grants for tuition, chore services
under Title XX of the Social Security
Act, VA aid and attendance or aid to
the home bound if the individual is in a
private living arrangement;
(14) Loans or grants such as the GI Bill,
civic, honorary and fraternal club
scholarships, loans, or scholarships
granted from private donations to the
college, etc., except for any portion
used or designated for maintenance;
(15) Loans, grants, or scholarships to under-graduates
for educational purposes
made or insured under any program
administered by the U.S. Department of
Education;
(16) Benefits received under Title VII of the
Older Americans Act of 1965;
8:5 NORTH CAROLINA REGISTER June 1, 1993 419
PROPOSED RULES
(17) Payments received under the Experi-mental
Housing Allowance Program
(EHAP);
(18) In-kind shelter and utility contributions
paid directly to the supplier. For Fami-ly
and Children's cases, shelter, utili-ties,
or household furnishings made
available to the client at no cost;
(19) Food/clothing contributions in Family
and Children's cases (except for food
allowance for persons temporarily
absent in medical facilities up to 12
months);
(20) Income of a child under 21 in the bud-get
unit who is participating in JTPA
and is receiving as a child;
(21) Housing Improvement Grants approved
by the N.C. Commission of Indian
Affairs or funds distributed per capital
or held in trust for Indian tribe mem-bers
under P. L. 92-254, P.L. 93-134 or
P.L. 94-540;
(22) Payments to Indian tribe members as
permitted under P.L. 94-114;
(23) Payments made by Medicare to a home
renal dialysis patient as medical bene-fits;
(24) SSI except for individuals in long term
care;
(25) HUD Section 8 benefits when paid
directly to the supplier or jointly to the
supplier and client;
(26) Benefits received by a client who is a
representative payee for another indi-vidual
who is incompetent or incapable
of handling his affairs. Such benefits
must be accounted for separate from the
payee's own income and resources;
(27) Special one time payments such as
energy, weatherization assistance, or
disaster assistance that is not designated
as medical;
(28) The value of the U.S. Department of
Agriculture donated foods (surplus
commodities);
(29) Payments under the Alaska Native
Claims Settlement Act. Public Law
92-203;
(30) Any payment received under Title II of
the Uniform Relocation Assistance and
Real Property Acquisition Policies Act
of 1970;
(31) HUD Community Development Block
Grant funds received to finance the
renovation of a privately owned resi-dence;
(32) Reimbursement for transportation ex-penses
incurred as a result of participa-tion
in the Community Work Experi-ence
Program or for use of client's own
vehicle to obtain medical care or treat-ment;
(33) Adoption assistance;
(34) Incentive payments made to a client
participating in a vocational rehabilita-tion
program;
(35) Title XX funds received to pay for
services rendered by another individual
or agency:
(36) Any amount received as a refund of
taxes paid;
(37) Any Cost of Living Allowance (COLA)
increase in the RSDI benefit for a
disabled widow or widower resulting
from the 1983 Actuarial Reduction
Formula (ARE) which caused the loss
of SSI effective January. 1984, for an
M-AA, M-AB, or M-AD client:
(A) Who received a disabled widow or
widower's benefit and SSI simulta-neously
in 1983 as identified by the
Social Security Administration, and
(B) Who lost SSI because of the elimina-tion
of the ARE, and
(C) Who is not now eligible for SSI, and
(D) Who was between 50 and 59 years of
age in 1983, and
(E) Who applied for Medicaid no later
than June 30, 1988, and
(F) Who is classified as Categorically
Needy;
(38) Any Cost of Living Allowance (COLA)
increase in the RSDI benefit for a client
or his financially responsible spouse or
parent(s), who:
(A) Is classified as Categorically Needy
for the M-AA, M-AB, or M-AD
programs, and
(B) Lost SSI or State/County Special
Assistance (S/C-SA) for any reason,
and
(C) Would currently be eligible for SSI or
S/C-SA if all COLA's since he was
last eligible for and received RSDI
and SSI or S/C-SA concurrently were
disregarded:
(39) The RSDI benefit for a client who:
(A) Is a disabled widow or widower or
surviving divorced spouse, and
(B) Received SSI for the month prior to
420 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
the month he began receiving RSDI,
and
(C) Would continue to be eligible for SSI
if the RSDI benefit were not counted,
and
(D) Is not entitled to a Medicare Part A.
(40) Earnings of aged, blind and disabled
individuals who have a plan for achiev-ing
self-support (PASS) that is ap-proved
by the Social Security Adminis-tration.
(c) Income levels for purpose of establishing
financial eligibility are those amount approved by
the N.C. General Assembly and stated in the
Appropriations Act for categorically needy and
medically needy classifications, except for the fol-lowing:
(1) The income level shall be reduced by
one-third when an aged, blind or dis-abled
individual lives in the household
of another person and does not pay his
proportionate share of household ex-penses.
The one-third reduction shall
not apply to children under nineteen
years of age who live in the home of
their parents;
(2) An individual living in a long term care
facility or other medical institution shall
be allowed a thirty dollar ($30.00)
income level, and a couple in the same
room in a long term care facility shall
be allowed a sixty dollar ($60.00)
income level;
(3) Individuals who are in a long term care
facility for a temporary period of six
months or less shall be allowed the
income level provided by statute in
addition to the thirty dollar ($30.00)
level.
Authority G.S. 108A-25(b); 108A-61; 42 C.F.R.
435.135; 42 C.F.R. 435.731; 42 C.F.R. 435.732;
42 C.F.R. 435. 733; 42 C.F.R. 435.811; 42 C.F.R.
435.812; 42 C.F.R. 435.831; 42 C.F.R. 435.832;
42 C.F.R. 435.1007; 42 U.S.C. 1383c(b); 42
V.S.C 1383c(d); 45 C.F.R. 233.20 ;P.L. 99-272;
Section 12202; Alexander v. Flaherty Consent
Order filed February 14. 1992.
SECTION .0400 - BUDGETING
PRINCIPALS
.0403 RESERVE
(a) The value of resources held by the client or
by a financially responsible person shall be consid-ered
available to the client in determining count-able
reserve for the budget unit.
(b) Jointly owned resources shall be counted as
follows:
(1) The value of resources owned jointly
with a non-financially responsible per-son
who is a recipient of another public
assistance budget unit shall be divided
equally between the budget units;
(2) The value of liquid assets and personal
property owned jointly with a
non-financially responsible person who
is not a client of another public assis-tance
budget unit shall be available to
the budget unit member if he can dis-pose
of the resource without the consent
and participation of the other owner or
the other owner consents to and, if
necessary, participates in the disposal of
the resource;
(3) The client's share of the value of real
property owned jointly with a
non-financially responsible person who
is not a member of another public
assistance budget unit shall be available
to the budget unit member if he can
dispose of his share of the resource
without the consent and participation of
the other owner or the other owner
consents to and, if necessary, partici-pates
in the disposal of the resource.
(c) The terms of a separation agreement, divorce
decree, will, deed or other legally binding agree-ment
or legally binding order shall take precedence
over ownership of resources as stated in (a) and
(b) of this Rule, except as provided in Paragraph
(o) of this Rule.
(d) The reserve limit for the budget unit for
aged, blind or disabled cases shall be determined
as follows:
(1) The reserve limit for two persons shall
be allowed when spouses live together
in a private living situation or when the
couple share the same room in long
term care;
(2) Allow the reserve limit for one person
for the Community Alternative Program
(CAP) client with a spouse at home and
only count the resources that are avail-able
to the CAP client in determining
his countable reserve;
(3) The reserve limit for one person is
allowed for the client who is in long
term care and the spouse remains in the
home;
8:5 NORTH CAROLINA REGISTER June 1, 1993 421
PROPOSED RULES
(4) The reserve allowance for one person is
allowed for the client who is in long
term care and the spouse is in domicili-ary
care;
(5) The reserve limit allowed for a blind or
disabled minor child who lives with his
parent or parents or is temporarily
absent includes the child and the parent
or parents with whom the child lives;
(6) The reserve limit allowed for a blind or
disabled dependent child under age 19
who is in long term care shall include
only the child if his care and treatment
are expected to exceed 12 months, as
certified by the child's physician.
(e) Countable resources for Family and
Children's related cases will be determined as
follows:
(1) The resources of a spouse, who is not a
stepparent, shall be counted in the
budget unit's reserve allowance if the
spouses live together or one spouse is
temporarily absent in long term care
and the spouse is not a member of
another public assistance budget unit;
(2) The resources of a client and a finan-cially
responsible parent or parents
shall be counted in the budget unit's
reserve limit if the parents live together
or one parent is temporarily absent in
long term care and the parent is not a
member of another public assistance
budget unit;
(3) The resources of the parent or parents
shall not be considered if a child under
age 21 requires care and treatment in a
medical institution and his physician
certifies that the care and treatment are
expected to exceed 12 months.
(f) The homesite shall be excluded from count-able
resources as follows: when it is the principal
place of residence for the client.—The homes ite i s
defined as the house and lot. plus all buildings on
the lot, in the city or the house and the land the
house i s on, to a maximum of one aere. plus all
buildings on the acre, in a rural area.
(1) For all aged, blind or disabled cases
and medically—needy families family
and children children's related cases, »
addition to the homesite is the client's
principal place of residence, which
includes the house and in the city the
lot on which the house sits and all the
buildings on the lot, or in a rural area
the land on which the house sits, up to
(2)
iH
one acre, and all buildings on the acre,
and, for all aged, blind, or disabled
cases and medically needy family and
children's related cases, the homesite
shall include real property contiguous to
the home with a tax value of less than
also includes up to twelve thousand
dollars ($12,000) tax value in real
property contiguous to the principal
place of residence, regardless of wheth-er
the principal place of residence is
owned by the client.
For all aged, blind or disabled cases the
equity in the homesite shall be excluded
when the client i s in long term carc-afld
his
—
spouse ,—minor children—or adult
disabled children remain in the home or
a physician has certified in writing that
the client will return home within six
months from the date of entry into the
hospital—ef
—
long term—eare
—
facility.
Additional value in real property con-tiguous
to the principal place of resi-dence
shall be a countable resource.
The exclusion of the homesite from
countable resources set forth in Sub-paragraphs
(f)( 1 ) and (2) of this Rule
shall also be applicable for all aged,
blind, or disabled cases when the client
is in long term care and his spouse,
minor children, or adult disabled chil-dren
remain in the home or a physician
has certified in writing that the client
will return home within six months
from the date of entry into the hospital
or long term care facility.
(g) For categorically needy aged, blind or
disabled cases without grandfathered protection,
nonhome property and personal property that is
income producing shall be excluded from resourc-es
when the budget unit's equity in the property
does not exceed six thousand dollars ($6,000) and
the property produces a net annual return of at
least six percent of the excludable equity value for
each income producing activity.
(h) For medically needy Families and Children
cases and medically needy aged, blind or disabled
cases without grandfathered protection, if the client
or any member of the budget unit has ownership in
a probated estate, the value of the individual's
proportionate share of the countable property shall
be a countable resource unless the property can be
excluded as the homesite or as income producing
property, as stated in (e) and (f) of this Rule.
(i) The equity in non-excluded real property
422 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
shall be counted toward the reserve level of the
budget unit.
(j) A motor vehicle shall be determined an
essential vehicle as follows:
(1) For aged, blind or disabled individuals
with grandfathered protection, if public
transportation cannot be used because it
is not available or because of his physi-cal
or mental condition and the vehicle
is needed to:
(A) Obtain regular medical treatment, or
(B) Retain employment, or
(C) Go shopping if the shopping area is
more than one-half mile from the
client's home, or
(D) Go shopping if the client is responsi-ble
for shopping and is physically
limited from walking one-half mile,
or
(E) Transport children to and from school
and the school is not within reason-able
walking distance;
(2) For aged, blind or disabled cases with-out
grandfathered protection and medi-cally
needy Family and Children's
related cases, a vehicle must be special-ly
equipped for use by a handicapped
individual, used to obtain regular medi-cal
treatment, or used to retain employ-ment.
(k) The value of non-excluded motor vehicles is
the Current Market Value, less encumbrances. If
the applicant/recipient disagrees with the assigned
value, he has the right to rebut the value.
(1) The current market value of a remainder
interest in life estate shall be determined by apply-ing
the remainder interest percentage from the
chart in the Medicaid Eligibility Manual to the tax
value of the property. A lower current market
value for remainder interest may be established by
offering the interest for sale and the highest offer
received, if any, is less than the value determined
by application of the values chart to the tax value.
(m) For all aged, blind or disabled cases, up to
one thousand five hundred dollars ($1 ,500) may be
excluded from countable resources for the client
and his spouse under the burial exclusion. Apply
the one thousand five hundred dollar ($1,500)
burial exclusion for each individual separately.
Only the following resources may be excluded and
they must be excluded in the following order:
(1) Irrevocable pre-need burial contracts,
burial trusts, or other irrevocable ar-rangements
established for burial ex-penses;
(2) Face value of life insurance policies
that accrue cash value when the total
face value of all policies for the budget
unit is one thousand five hundred dol-lars
($1,500) or less and the cash value
was not counted in reserve;
(3) Revocable burial contracts or trusts
established for burial expenses. Any
excess remains a countable resource;
(4) Cash value of life insurance that has
been designated for burial expenses if
the cash value was considered in deter-mining
countable reserve. Any cash
value in excess of one thousand five
hundred dollars ($1,500) remains a
countable resource.
(n) For all aged, blind or disabled cases and
medically needy Family and Children's related
cases, the value of trust funds established for the
client or for any member of the budget unit is a
countable resource unless it is determined by the
courts that the funds are not available for the
beneficiary of the trust.
(o) For a married individual:
(1) Resources available to the individual
are available to his or her spouse who
is a noninstitutionalized applicant or
recipient and who is either living with
the individual or temporarily absent
from the home, irrespective of the
terms of any will, deed, contract, ante-nuptial
agreement, or other agreement,
and irrespective of whether or not the
individual actually contributed the
resources to the applicant or recipient.
All resources available to an applicant
or recipient under these rules must be
considered when determining his or her
countable reserve.
(2) For an institutionalized spouse as de-fined
in 42 U.S.C. 1396r-5(h), avail-able
resources shall be determined in
accordance with 42 U.S.C. 1396r-5(c),
except as specified in Paragraph (p) of
this Rule.
(p) For an institutionalized individual, the
availability of resources are determined in accor-dance
with 42 U.S.C. 1396r-5. Resources of the
community spouse are not counted for the institu-tionalized
spouse when:
(1) Resources of the community spouse
cannot be determined or cannot be
made available to the institutionalized
spouse because the community spouse
cannot be located; or
8:5 NORTH CAROLINA REGISTER June 1, 1993 423
PROPOSED RULES
(2) The couple has been continuously sepa-rated
for 12 months at the time the
institutionalized spouse enters the insti-tution.
Authority G.S. 108A-54; 108A-55; 143-127. 1(d);
S.L. 1983, c. 1116; 42 U.S. C. 1396r-5; 42 U.S. C.
1396a(a)(17); 42 U.S.C. 1396a(a)51; 42 C.F.R.
435.602; 42 C.F.R. 435.711; 42 C.F.R. 435.712;
42 C. F. R. 435. 723; 42 C. F. R. 435. 734; 42 C F. R.
435.821; 42 C.F.R. 435.822; 42 C.F.R. 435.823;
42 C.F.R. 435.845; 45 C.F.R. 233.20; 45 C.F.R.
233.51; Deficit Reduction Act of 1984 (P.L.
98-369), Section 2373; Correll vs.
DSS/DMA/DHR, No. 406PA91 (North Carolina
Supreme Court); Schweiker v. Gray Panthers, 453
U.S. 34. 101 S.Ct. 2633, 69 L. Ed. 2d 460 (1981).
.0406 DEDUCTIBLE
(a) Deductible shall apply to clients living in the
community in private living quarters or residential
group facilities, except that a client in long term
care who is expected to return to his home within
six months retains his private living status.
(b) The client or his representative shall be
responsible for providing bills, receipts, insurance
benefit statements or Medicare EOB to establish
incurred medical expenses and his responsibility
for payment. If the client has no representative
and he is physically or mentally incapable of
accepting this responsibility, the county shall assist
him.
(c) Expenses shall be applied to the deductible
when they meet the following criteria:
(1) The expenses are for medical care or
service recognized under state or feder-al
tax law;
(2) The are incurred by a budget unit mem-ber;
(3) They are incurred:
(A) During the certification period for
which eligibility is being determined
and the requirements of Paragraph (d)
of this Rule are met; or
(B) Prior to the certification period and
the requirements of Paragraph (e) of
this Rule are met.
(d) Medical expenses incurred during the certifi-cation
period shall be applied to the deductible if
the requirements in Paragraph (c) of this Rule are
met and:
( 1 ) The expenses are not subject to pay-ment
by any third party including insur-ance,
government agency or program
except when such program is entirely
funded by state or local government
funds, or private source; or
(2) The private insurance has not paid such
expenses by the end of the application
time standard; or
(3) For certified cases, the insurance has
not paid by the time that incurred ex-penses
equal the deductible amount; or
(4) The third party has paid and the client
is responsible for a portion of the
charges.
(e) The unpaid balance of a Medical expense
incurred prior to the certification period shall be
applied to the deductible if the requirements in
Paragraph (c) of this Rule are met and:
(1) The medical expense was:
(A) Incurred within 24 months immediate-ly
prior to:
(i) The month of application for
prospective or retroactive certifi-cation
period or both; or
(ii) The first month of any subsequent
certification period; or
(B) Incurred prior to the period described
in Subparagraph (e)(1)(A) of this
Rule; and a payment was made on the
bill during that period; and
(2) The medical expense:
(A) Is a current liability;
(B) Has not been applied to a previously
met deductible; and
(C) Insurance has paid any amount of the
expense covered by the insurance.
(f) Incurred medical expenses shall be applied to
the deductible in the chronological order in which
they arc incurred by calendar date except that
expenses remaining after insurance payments for
lump sum of charges shall be computed by except
that :
(1) Determining average daily charge ex
eluding discharge date from hospital; If
medical expenses for Medicaid covered
services and non-covered services occur
on the same date, apply charges for
non-covered services first; and
(2) Determining—average daily—insurance
payment for the same number of days;
If both hospital and other covered
medical services are incurred on the
same date, apply hospital charges first;
and
(3) Subtracting—average—daily—insurance
payment from the average daily charge
to establish client's daily responsibility.
If a portion of charges is still owed
424 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
after insurance payment has been made
for lump sum charges, compute in-curred
daily expense to be applied to
the deductible as follows:
(A) Determine average daily charge ex-cluding
discharge date from hospitals;
and
(B) Determine average daily insurance
payment for the same number of
days; and
(C) Subtract average daily insurance
payment from the average daily
charge to establish client's daily re-sponsibility.
(g) Eligibility shall begin on the day that in-curred
medical expenses prove reduce the deduct-ible
is met to $0, except that the client shall be is
financially liable for that the portion of his medical
expenses incurred on the first day of eligibility
which arc that were applied to the balance of
reduce the deductible to $0. Notice of the deduct
iblc balance shall be sent to the hospital if the
client was hospitalized on the date deductible is
«e*r If hospital charges were incurred on the first
day of eligibility, notice of the amount of those
charges applied to meet the deductible shall be sent
to the hospital for deduction on the hospital's bill
to Medicaid,
(h) The receipt of proof of medical expenses and
other verification shall be documented in the case
record.
Authority G.S. 108A-54; 42 C.F.R. 435.732; 42
C. F. R. 435. 831; Alexander v. Flaherty, U. S. D. C. ,
W.D.N. C. , File Number C-C-74-483; Alexander v.
Flaherty Consent Order filed February 14, 1992.
TITLE 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
i\ otice is hereby given in accordance with G.S.
150B-21.2 that EHNR, Commission for Health
Services intends to amend rule cited as 15A NCAC
13B .0201.
1 he proposed effective date of this action is
October 9, 1993.
1 he public hearing will be conducted at 10:00
a.m. on July 15, 1993 at the Highway Building,
First Floor Auditorium, 1 South Wilmington Street,
Raleigh, North Carolina.
Ixeason for Proposed Action: To facilitate the
availability of new lined landfill capacity in a
timely manner.
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 on
the speaker's list. Oral presentation lengths may
be limited depending on the number ofpeople 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 address pro-posed
changes from staff pursuant to comments
made during the public hearing process.
IT IS VERY IMPORTANT THAT ALL INTEREST-ED
AND POTENTIALLY AFFECTED PERSONS,
GROUPS, BUSINESSES, ASSOCIATIONS, INSTI-TUTIONS,
OR AGENCIES MAKE THEIR VIEWS
AND OPINIONS KNOWN TO THE COMMISSION
FOR HEALTH SERVICES THROUGH THE PUB-LIC
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 THE COMMIS-SION
MEETING IF THE CHANGES COMPLY
WITH G.S. 150B-21.2(f).
tLditor's Note: This Rule was filed as a tempo-rary
rule effective May 19, 1993 to expire on
October 9, 1993 or until the permanent rule
becomes effective, whichever is sooner.
CHAPTER 13 - SOLID WASTE
MANAGEMENT
SUBCHAPTER 13B - SOLID WASTE
MANAGEMENT
SECTION .0200 - PERMITS FOR SOLID
WASTE MANAGEMENT FACILITIES
8:5 NORTH CAROLINA REGISTER June 1, 1993 425
PROPOSED RULES
.0201 PERMIT REQUIRED
(a) No person shall establish or allow to be
established on his land, a solid waste management
facility, or otherwise treat, store, or dispose of
solid waste unless a permit for the facility has been
obtained from the Division.
(b) The permit, except for land clearing and
inert debris permits, shall have two parts, as
follows:
(1) A permit to construct a solid waste
management facility shall be issued by
the Division after site and construction
plans have been approved and it has
been determined that the facility can be
operated in accordance with the applica-ble
rules set forth in this Subchapter
and so as to provide reasonable protec-tion
to the environment and the public
health. Except as provided in Subpara-graphs
(b)(2) and (b)(3) of this Rule,
Aft an applicant shall not clear or grade
land or commence construction for a
solid waste management facility until a
construction permit has been issued.
(2-) A permit to operate a solid waste man
agement facility—H»y
—
not be issued
unless it ha3 been determined that the
facility has been constructed in accor
dance with the construction permit, that
any
—
pre operative—conditions—of the
construction permit have been met. and
that the construction permit has been
recorded, if applicable, in accordance
with Rule .0204 of thi s Section.
(2) Subject to the limitations specified in
this Subparagraph, an applicant for a
permit to construct a sanitary landfill
intended to conform to the siting and
design requirements for municipal solid
waste landfills ("MSWLF") established
in 40 C.F.R. Part 258 may, prior to
issuance of a construction permit, pro-ceed
at its own risk to clear and grade
land, or otherwise commence construc-tion
of the proposed MSWLF, if all the
following conditions apply:
The plan for the proposed
MSWLF has been approved by the
Division; and
The site has been determined by the
Division to comply with Rules .0503
and .0504 of this Subchapter;
(C) The proposed MSWLF is intended to
provide disposal capacity |n lieu of a
currently operating unlined landfill
(A) site
(B)
which shall permanently cease accept-ing
solid waste no later than the date
the new MSWLF becomes operation-aL
(3) An applicant for a permit to construct a
MSWLF who desires to initiate con-struction
prior to issuance of the permit
shall submit a written request to the
Director of the Division which provides
evidence satisfactory to the Division of
the conditions specified in Subpara-graph
(b)(2) of this Rule, and which
clearly specifies the maximum extent of
clearing, grading or other construction
the applicant proposes to undertake
prior to receipt of its permit. Under no
circumstances will initiation of the soil
liner or synthetic liner construction
begin prior to issuance of a construction
permit. The Division Director may
approve more limited interim construc-tion
activity than proposed by the appli-cant
as, in the Division Director's sole
discretion, may be required to help
ensure that any activity undertaken
prior to issuance of an applicant's
construction permit shall be in accor-dance
with all applicable laws related to
the protection of the environment.
Additionally, the Division Director's
approval shall be contingent upon the
applicant's acknowledgement by Memo-randum
of Agreement (MOA) with the
Division that it is proceeding at its own
risk and with the understanding and
agreement that the applicant's initiation
of such interim construction activity
does not provide ]t with any type of
vested right or other expectation it can
rely on that issuance of a permit will be
forthcoming. Furthermore, the appli-cant
shall agree to immediately cease
all such clearing, grading or other
construction activity upon initial notifi-cation
by the Division that a permit to
construct the proposed MSWLF will
not be issued. The applicant shall
restore the site to original land contours
and reestablish vegetation to the extent
practical unless other environmentally
acceptable restoration is approved by
the Division. No approval shall be
issued until the applicant has provided
a bond determined by the Division to
be sufficient to restore the site to the
426 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
original land contours and reestablish
vegetation to the extent practical
.
(4) A permit to operate a solid waste man-agement
facility may not be issued
unless it has been determined that the
facility has been constructed in accor-dance
with the construction permit, that
any pre-operative conditions of the
construction permit have been met, and
that the construction permit has been
recorded, if applicable, in accordance
with Rule .0204 of this Section.
£5) Subparagraphs (b)(2) and (b)(3) shall be
in effect only until October 9* 1993.
(c) Land clearing and inert debris facilities may
be issued a combined permit to construct and
operate the facility.
(d) Land clearing and inert debris facilities
subject to Rule .0563 Item (1) may construct and
operate after notification as provided for under
Rule .0563 Item (2).
(e) Permits, including those issued prior to the
effective date of this Rule, shall be reviewed every
five years. Modifications, where necessary, shall
be made in accordance with rules in effect at the
time of review for those areas of a permitted
sanitary landfill site which have not previously
received solid waste.
(f) All solid waste management facilities shall be
operated in conformity with these Rules and in
such a manner as to prevent the creation of a
nuisance, unsanitary conditions, or potential public
health hazard.
Statutory Authority G.S. 130A-294.
ISotice is hereby given in accordance with G.S.
150B-21.2 that EHNR, Commission for Health
Services intends to adopt rule cited as 15A NCAC
21D . 1202. No hearing is required. Rules 15A
NCAC 21D . 1201-1207 were previously published
in Volume 7, Issue 24, March 15. 1993, with a
proposed effective date of July 1 , 1993. A public
hearing was held on March 31 , 1993. Rule 15A
NCAC 21D .1202 is being published to take
comments on the proposed new text for 30 days.
Rules 15A NCAC 21D .1201-1207 now have a
proposed effective date of October 1 , 1993.
1 he proposed effective date of this action is
October 1, 1993.
MXeasonfor Proposed Action: For the administra-tion
of the newfunding source for nutrition servic-
Lsomment Procedures: All written comments must
be submitted no later than 5:00 p.m. on July 2,
1993 to Alice Lenihan, P.O. Box 1008, Raleigh,
NC 27605-0008 (919) 715-0636.
tLditor's Note: An agency may not adopt a rule
that differs substantially from the text of a pro-posed
rule published in the Register, unless the
agency publishes the text of the proposed differ-ent
rule and accepts comments on the new text
for at least 30 days after the publication of the
new text.
CHAPTER 21 - HEALTH: PERSONAL
HEALTH
SUBCHAPTER 21D - WIC/NUTRITION
SECTION .1200 - MATERNAL AND CHILD
HEALTH BLOCK GRANT NUTRITION
PROGRAM
.1202 PROVIDER ELIGIBILITY
Local health departments are eligible to receive
Maternal and Child Health Block Grant Nutrition
Program funds from the Division. All providers
that contract for the receipt of MCH Block Grant
Nutrition Program funds are required to provide
services in accordance with rules of this Section.
Statutory Authority G.S. 130A-361.
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 rule cited as 16 NCAC 6H .0004.
1 he proposed effective date of this action is
October 1, 1993.
1 he public hearing will be conducted at 9:30
a.m. on June 28, 1993 at the State Board Room,
7th Floor, Education Bldg. , 301 N. Wilmington
St., Raleigh, NC 27601-2825.
8:5 NORTH CAROLINA REGISTER June 1, 1993 427
PROPOSED RULES
ixeason for Proposed Action: To respond to
change in G.S. 115C-264.
Comment Procedures: Any interested person may
submit views either in writing prior to or at the
hearing or orally at the hearing. Written com-ments
may be sent to the Department and must be
postmarked no later than July 2, 1993 addressed
to: Harry Wilson, Room 2806, Education Building,
Raleigh, N.C.
CHAPTER 6 - ELEMENTARY AND
SECONDARY EDUCATION
SUBCHAPTER 6H - FEDERAL PROGRAMS
.0004 CHILD NUTRITION PROCEDURES
(a) National School Lunch Program policies and
standards are as follows:
(1) A la carte sales are limited to foods
contributing to the nutritional
well-being of the child and aiding in the
establishment of good food habits.
School food authorities and sponsoring
organizations may provide these foods
under the following conditions:
(A) Sponsors Except as provided by G.S.
1 15C-264, sponsors must operate all
food and beverage services during or
before the established lunch period
through the school food service de-partment.
(B) The school food service department
retains all receipts from the sale of
these items.
(C) Sponsors must use all food service
income for the purpose of the school's
non-profit child nutrition programs.
(D) A Except as provided by G.S.
1 15C-264, a la carte items may not
include foods of minimum nutritional
value, as follows:
(i) soda water (soda pop),
(ii) water ices,
(iii) chewing gum,
(iv) processed foods made predomi-nately
from sweeteners or artifi-cial
sweeteners with a variety of
minor ingredients. These foods
include hard candy, jellies and
gums, marshmallow candies,
fondant, licorice, spun candy, and
candy-coated popcorn; and
(v) confections and carbonated
drinks.
(E) Adults may purchase individual food
items without purchasing a complete
lunch.
(2) Competitive food sales by a school of
extra food items in the lunchroom or its
general environs must be on a
non-profit basis. "On a non-profit
basis" means that the sponsor deposits
income from the sale of such food items
to the account of the school's non-profit
lunch and breakfast programs and uses
the income solely for these programs.
(A) The Except as provided by G.S.
1 15C-264, the school may sell extra
food items after the established lunch
hour is over, only with the approval
of the LEA. The established lunch
hour is over when the last pupil has
been served for the day.
(B) Occupational home economics instruc-tional
programs which operate under
an approved annual vocational educa-tion
plan and which involve the prep-aration
and sale of foods to individu-als
other than students are not in
competition with the child nutrition
program.
(C) The Department may deny the oppor-tunity
to participate in the program to
any school food authority which
operates in violation of state policy.
(b) Sponsors must use receipts from child
nutrition programs for the cost of operation as
outlined in current federal regulations and state
policy.
(c) No full-time public school employee is
eligible for part-time employment in food services.
(d) The only adults who may eat in the school
food service department are school employees,
personnel on official school business and invited
local patrons. These persons pay, as a minimum,
the adult price for lunch.
Statutory Authority G.S. 115C-263; 115C-264.
TITLE 21 - OCCUPATIONAL
LICENSING BOARD
iSotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Certification
Boardfor Social Work intends to amend rules cited
as 21 NCAC 63 .0104, .0201. .0306, .0401,
428 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
. 0501; and adopt rule cited as 21 NCA C 63 .0210.
1 he proposed effective date of this action is
September 1, 1993.
1 he public hearing will be conducted at 10:00 -
11:00 a.m. on June 18, 1993 at Keyes Manage-ment,
Inc. , 130 South Church Street, Asheboro,
NC 27203.
Jxeason for Proposed Action:
21 NCAC 63 .0104 - To update information as
specified in the law pertaining to the Board Mem-bership.
21 NCAC 63 .0201 - To provide supervision by the
qualified professional in the discipline of social
work.
21 NCAC 63 .0210 - To provide requirements for
applicants seeking provisional certificates.
21 NCAC 63 .0306 - To increase examination fees
to the maximum coverage due to increase in costs.
21 NCAC 63 .0401 - To provide additional contin-uing
education requirements as related to ethics.
21 NCAC 63 .0501 - To provide written confirma-tion
from approved applicants to their acceptance
of the Board's Ethical Standards for Practice.
(comment Procedures: Persons wishing to present
oral data, views or arguments on a proposed rule
may file a notice with the Board at least 10 days
prior to the public hearing at which the person
wishes to speak. Comments should be limited to
five minutes. The address of the Board is P. O.
Box 1043, Asheboro, NC 27204. Written com-ments
or arguments must be received by the Board
no later than July 2, 1993.
CHAPTER 63 - CERTIFICATION BOARD
FOR SOCIAL WORK
SECTION .0100 - GENERAL
.0104 ORGANIZATION OF THE BOARD
The
—
North—Carolina—Certification—Board—fef
Social Work is composed by law of seven mem
bcrs appointed by the governor to staggered terms
of three years. The composition of the board 3hall
include four certified social workers (two certified
social workers and two certified clinical social
workers). Among the social workers, one member
shall be employed in the field of social—work
education, one member from the private sector and
one member from the public sector.—The three
remaining members shall be from the general
public. The composition of the Board shall be in
accordance with G.S. 90B-5. The Board shall
elect a chairperson, vice chairperson and
secretary-treasurer from its membership to serve
for a term of at least one year. The Board shall
hold at least eight meetings each year and four
members shall at all times constitute a quorum.
Members of the Board are expected to attend all
meetings.
Statutory Authority G.S. 90B-7.
SECTION .0200 - CERTIFICATION
.0201 DEFINITIONS
The following definitions apply to the levels of
certification in this Section:
(1) Related human services fields shall in-clude
psychology, sociology, counseling,
rehabilitation, criminal justice, public
policy, public administration, and human
resources. The Board may, within its
discretion, consider other fields not spe-cifically
set out in this Subparagraph.
(2) Two years of experience shall mean
3,000 clock hours of work or employ-ment
for a fee or salary while engaged in
the practice of social work functions.
(1500 hours of work for a fee or salary
per 12 month period.) Practicum or
internship experience taken as part of an
educational program are not included.
(3) Appropriate supervision (clinical) shall
mean post-master's or post-doctoral
experience directly supervised by a quali
fied social worker, psychiatrist, or clini
cal psychologist certified clinical social
worker defined in this Act . The social
work supervisor should have had at least
two years of social work clinical experi-ence
after completion of the master's or
doctorate in social work and be eligible
for certification as a clinical social work-er
under the Act. The psychologist and
psychiatrist should be licensed and appro
priately board certified by the respective
di scipline. A minimum of 100 hours of
group or individual supervision is re-quired.
75 of the 100 hours must be
individual supervision. Individuals ccrti
fied through the Academy of Certified
Social Workers, the National Federation
of Health—Care—Providers—m
—
Clinical
8:5 NORTH CAROLINA REGISTER June 1, 1993 429
PROPOSED RULES
Social Work,—Inc., or the Register of
Clinical Social Workers already meet the
supervision requirement.
(4) Clinical setting shall mean any school,
hospital, community mental health center,
university counseling center, family or
social services agency, or supervised
independent practice. Such settings may
be under public or private auspices and
provide psychotherapeutic or social inter-vention
for psychosocial problems of
individuals, couples, families or groups.
(5) Administrative setting shall mean any
setting where the delivery of social work
services are directed, supervised, planned
and/or coordinated. Activities include,
but are not necessarily limited to, policy
development and implementation, man-agement,
program evaluation, planning
and staff development.
(6) Appropriate supervision and training
(manager) shall mean course work or
workshops in organizational and commu-nity
services and/or two years (3.000
hours) of paid employment under super-vision
in an administrative setting.
Statutory Authority G.S. 90B-3; 90B-5; 90B-6.
.0210 PROVISIONAL CERTIFICATES
(a) The Board shall issue a provisional certifi-cate
pursuant to G.S. 90B-7(f).
(b) Applications and forms are to be obtained
and returned to the North Carolina Board for
Social Work.
(c) An application fee of fifty dollars ($50.00)
will be assessed for processing each application.
(d) All provisional applicants who have not met
requirements for two years supervised clinical
experience shall receive on-going supervision until
this requirement is satisfied.
(e) The provisional certificate shall be renewed
every six months by submission to the Board of
the appropriately completed renewal and supervi-sion
form and a fee of twelve dollars and fifty
cents ($12.50) 30 days prior to the renewal date.
Statutory- Authority G.S. 90B-7.
SECTION .0300 - EXAMINATIONS
.0306 EXAMLNATION FEES
(a) An additional examination fee of one hun-dred
dollars ($100.00) will be assessed for admin-istration
and processing of the any written exami-nation.
An unsuccessful applicant shall be as
sessed a fee of se venty five dollars ($75.00) in
order to retake the examination.
(b) An examination fee of fifty dollars ($50.00)
will be assessed for the administration and process
ing of a second written examination if an applicant
seeks certification at two different levels.
(b) (e) An applicant who fails to appear for an
examination shall be assessed a fee of fifty dollars
($50.00) one hundred dollars ($100.00) in order to
take the examination at a later date.
Statutory Authority G.S. 90B-6.
SECTION .0400 - RENEWAL OF
CERTIFICATION
.0401 CONTINUING EDUCATION
Continuing education for certification renewal is
required to maintain professional knowledge and
technical competency. Certification shall be
afforded on a two year basis. However, certifica-tion
shall expire on the second June 30 after
certification has been issued. Renewal of certifica-tion
shall be based on 40 hours of renewal credits
within the two year cycle. However, if a certifica-tion
is for less than a full two year period, then
renewal shall be accorded based on 30 hours of
renewal credits. One unit of credit is equal to one
contact hour. One academic course semester hour
credit shall be equivalent to 15 clock hours.
Credit for auditing an academic course shall be for
actual clock hours attended during which instruc-tion
was given and shall not exceed the academic
credit allowed. Continuing education activities
may include:
( 1
)
academic social work courses taken for
credit or audit;
(2) formal agency-based staff development,
seminars, institutes, workshops, mini
courses or conferences oriented to the
enhancement of social work, practice,
values, skills and knowledge;
(3) cross-disciplinary offerings from medi-cine,
law and the behavioral/social sci-ences
or other disciplines, if such offer-ings
are clearly related to the enhance-ment
of social work practice, values,
skills and knowledge;
(4) self-directed learning projects with prior
approval by the Board. The maximum
number for projects is 20 clock hours. A
renewal unit shall not be granted for
identical programs completed within the
same certification renewal period, job
430 8:5 NORTH CAROLINA REGISTER June 1, 1993
PROPOSED RULES
orientation or on the job trainingT j and
(5) during each renewal period all certified
social workers shall engage in a mini-mum
of two-hours of continuing educa-tion
focused on ethics.
Statutory Authority G.S. 90B-6; 90B-9.
SECTION .0500 - ETHICAL GUIDELINES
.0501 INTRODUCTION
A certified social worker shall promote profes-sional
policies and practices which enhance the
delivery of social work services. Upon approval
of certification, each applicant shall review the
Ethical Standards and return a signed statement to
the Board agreeing to abide by these standards.
Statutory Authority G.S. 90B-2.
8:5 NORTH CAROLINA REGISTER June 1, 1993 431
LIST OF RULES CODIFIED
1 he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated.
Key-
Citation = Title. Chapter, Subchapter and Rule(s)
AD = Adopt
AM = Amend
RP = Repeal
With Chgs = Final text differs from proposed text
Corr = Typographical errors or changes that requires no rulemaking
Eff. Date = Date rule becomes effective
Temp. Expires Rule was filed as a temporary rule and expires on this date or 180 days
I
NORTH CAROLINA ADMINISTRATIVE CODE
APRIL 93
TITLE DEPARTMENT TITLE DEPARTMENT
1 Administration 12 Justice
3 State Auditor 15A Environment, Health,
4 Economic and Community and Natural Resources
Development 20 State Treasurer
10 Human Resources 21 Occupational Licensing Boards
11 Insurance 32 - Medical Examiners
34 - Mortuary Science
I
Citation AD AM RP With
Chgs Corr
Eff.
Date
Temp.
Expires
1 NCAC 25 .0108 / / 05/03/93
.0209 - .0210 / / 05/03/93
.0211 / 05/03/93
.0213 / / 05/03/93
.0302 / / 05/03/93
.0401 / / 05/03/93
.0503 - .0504 / 05/03/93
.0505 - .0506 / / 05/03/93
.0603 / / 05/03/93
.0605 / / 05/03/93
.0701 - .0703 / / 05/03/93
.0801 / 05/03/93
432 8:5 NORTH CAROLINA REGISTER June 1, 1993
LIST OF RULES CODIFIED
Citation AD AM RP With
Chgs Corr
Eff.
Date
Temp.
Expires
1 NCAC 25 .0802 / / 05/03/93
.0901 / 05/03/93
3 NCAC 3
transferred and recodified to
20 NCAC 2N
05/01/93
4 NCAC 3F .0403
renumbered to .0402
/
5A .0101 / 05/03/93
.0106 / 05/03/93
5B .0101 - .0103 / / 05/03/93
.0105 / / 05/03/93
5C .0101 / 05/03/93
.0103 / / 05/03/93
.0201 / / 05/03/93
.0301 / 05/03/93
.0303 / / 05/03/93
5D .0101 / / 05/03/93
.0107 / 05/03/93
.0201 - .0202 / / 05/03/93
.0203 / 05/03/93
.0204 / 05/03/93
16G .0311 / 05/03/93
10 NCAC ID .0107 / 05/01/93
1M .0001 / 05/01/93
.0002 - .0003 / / 05/01/93
.0004 - .0008 / 05/01/93
3C .2020 - .2021 / / 05/01/93
.2022 - .2023 / 05/01/93
.2024 / / 05/01/93
.2025 - .2026 / 05/01/93
.2027 - .2030 / / 05/01/93
.2033 / / 05/01/93
3H .1150-. 1151 / / 05/01/93
.1152 - .1153 / 05/01/93
8:5 NORTH CAROLINA REGISTER June 1, 1993 433
LIST OF RULES CODIFIED
Citation AD AM RP With
Chgs Corr
Eff.
Date
Temp.
Expires
10 NCAC 3H .1154 / / 05/01/93
.1155 - .1156 / 05/01/93
.1157 - .1160 / / 05/01/93
.1163 / / 05/01/93
.1204 / 05/01/93
3J .3302 / 06/01/93
.3420 / 06/01/93
.3425 / 06/01/93
3L .0903 / 05/01/93
.1110 / / 07/01/93
.1202 / 05/01/93
41E .0504 / / 07/01/93
.0506 / 07/01/93
.0511 / 07/01/93
.0603 / 07/01/93
41G .0507 / 07/01/93
.0705 / / 07/01/93
.0707 / / 07/01/93
411 .0102 - .0103 / / 07/01/93
.0201 - .0202 / 07/01/93
.0204 / 07/01/93
.0303 / / 07/01/93
.0304 / 07/01/93
.0305 / / 07/01/93
.0306 - .0307 / 07/01/93
.0308 / / 07/01/93
.0401 - .0402 / 07/01/93
.0409 - .0410 / 07/01/93
11 NCAC 4 .0428 / 05/03/93
1 IB .0607 / / 05/01/93
.0610 / / 05/01/93
16 .0301 - .0303 / / 05/03/93
12 NCAC 7D .0906 / / 05/03/93
434 8:5 NORTH CAROLINA REGISTER June 1, 1993
LIST OF RULES CODIFIED
Citation AD AM RP With
Chgs Corr
Eff.
Date
Temp.
Expires
12 NCAC 11 .0203 /
15A NCAC 2H .0105 /
.0107 /
7H .1205 / 04/23/93
7K .0203 / 05/03/93
10D .0003 /
18A .2537 / 05/01/93 180 DAYS
18D .0201 / 05/03/93
.0206 / 05/03/93
20D .0234 / / 05/01/93
20 NCAC 2N
transferred and recodified from
3 NCAC 3
05/01/93
21 NCAC 32H .0400 /
34A .0102 / 05/0193
.0201 / 05/01/93
34D .0102 - .0103 / 05/01/93
.0201 / / 05/01/93
.0301 - .0302 / / 05/01/93
.0303 - .0304 / 05/01/93
.0401 - .0402 / 05/01/93
.0403 / / 05/01/93
.0404 / 05/01/93
8:5 NORTH CAROLINA REGISTER June 1, 1993 435
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
COMMERCE
Banking Commission
4 NCAC 3F .0402 - Required and Permissible Investments
Agency Withdrew Rule
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
Savings Institutions Division: Savings Institutions Commission
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
RRC Objection 01/21/93
Obj. Cont'd 02/18/93
03/19/93
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 16A .0105 - Restrictions: Payment of Dividends & Repurchase of Stock RRC Objection 03/18/93
Agency Revised Rule
4 NCAC 16G .0311 - Required Provisions in Plan of Conversion
Agency Revised Rule
Agency Revised Rule
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Obj. Removed