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—— I" 3£ 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
Object Description
Description
Title | North Carolina register |
Date | 1993-06-01 |
Description | Vol. 8, issue 5 (June 1, 1993) |
Publisher | Raleigh, N.C. : Office of Administrative Hearings |
Digital Characteristics-A | 62 p.; 3.73 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister19930601.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text | —— I" 3£ 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 |