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j^PfN^Av^"-// y^i./(^^1j ^ I -i^, 'Av nMi s The NORTH CAROLINA REGISTER H JTITU TION IN THIS ISSUE EXECUTIVE ORDERS ADMINISTRATIVE ORDER FINAL DECISION LETTERS PROPOSED RULES Administration Certified Public Accountant Cultural Resources Human Resources Insurance Medical Examiners FINAL RULES RECPtVED Correction NOV 1 1991 Revenue C/IW LIbKARY RRC OBJECTIONS RULES INVALIDATED BY JUDICIAL DECISION ISSUE DATE: OCTOBER 15, 1991 Volume 6 • Issue 14 • Pages 924-980 INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE NORTH CAROLINA REGISTER The North Carolina Register is published bi-monthly and contains information relating to agency, executive, legislative and judicial actions required by or affecting Chapter 150B of the General Statutes. All proposed, ad-ministrative rules and amendments filed under Chapter 150B 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 pro- \'ided free of charge to each county in the state and to \arious state officials and institutions. The North CaroHna Register is available by yearly subscription at a cost of one hundred and five dollars ($105.00) for 24 issues. Requests for subscriptions to the North Carolina Register should be directed to the Office of Ad-ministrative Hearings, P. 0. Drawer 27447, Raleigh, N. C. 27611-7447, Attn: Subscriptions. ADOPTION, AMENDMENT, AND REPEAL OF RULES An 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; a statement of how public comments may be submitted to the agency either at the hearing or otherwise; the text of the proposed rule or amendment; a reference to the Statutory Authority for the action and the proposed effective date. The Director of the Office of Administrative Hearings has authority to publish a summary, rather than the full text, of any amendment which is considered to be too lengthy. In such case, the full text of the rule con-taining the proposed amendment will be available for public inspection at the Rules Division of the Office of Administrative Hearings and at the office of the pro-mulgating agency. Unless a specific statute provides otherwise, at least 30 days must elapse following publication of the pro-posal in the North Carolina Register heiore the agency may conduct the required public hearing and take ac-tion on the proposed adoption, amendment or repeal. When final action is taken, the promulgating agency must file any adopted or amended rule for approval by the Administrative Rules Review Commission. Upon ap-proval of ARRC, the adopted or amended rule must be filed with the Office of Administrative Hearings. If it differs substantially from the proposed form published as part of the public notice, upon request by the agen-cy, the adopted version will again be published in the North Carolina Register. A rule, or amended rule cannot become effective earlier than the first day of the second calendar month after the adoption is filed with the Office of Ad-ministrative Hearings for publication in the NCAC. Proposed action on rules may be withdrawn by the promulgating agency at any time before final action is taken by the agency. TEMPORARY RULES Under certain conditions of an emergency nature, some agencies may issue temporary' rules. A temporary rule becomes effective when adopted and remains in effect for the period specified in the rule or 180 day: whichever is less. An agency adopting a temporary rul must begin normal rule-making procedures on the pe manent rule at the same time the temporary rule adopted. NORTH CAROLINA ADMINISTRATIVE CODE The North Carolina Administrative Code (NCAC) a compilation and index of the administrative rules ( 25 state agencies and 38 occupational licensing board The NCAC comprises approximately 15,000 letter siz single spaced pages of material of which approximat ly 35% is changed annuallv. Compilation and public tion of the NCAC is mandated by G.S. 150B-63(b). The Code is divided into Titles and Chapters. Eac state agency is assigned a separate title which is fu ther broken down by chapters. Title 21 is designate for occupational licensing boards. The NCAC is available in two formats. (1) Single pages may be obtained at a minimu cost of two dollars and 50 cents ($2.50) for pages or less, plus fifteen cents ($0.15) per eac additional page. (2) The full publication consists of 53 volume totaling in excess of 15,000 pages. It is su plemented monthly with replacement pages, one year subscription to the full publication i eluding supplements can be purchased f( seven hundred and fifty dollars ($750.00). I dividual volumes may also be purchased wi supplement service. Renewal subscriptions f supplements to the initial publication availab Requests for pages of rules or volumes of the NC/ should be directed to the Office of Administrati Hearings. NOTE The foregoing is a generalized statement of the pi cedures to be followed. For specific statutory languaj it is suggested that Articles 2 and 5 of Chapter 150B the General Statutes be examined carefully. CITATION TO THE NORTH CAROLINA REGISTER The North Carolina Register is cited by volume, issi page number and date. 1:1 NCR 101-201, April 1, 19 refers to Volume 1, Issue 1, pages 101 through 201 the North Carolina Register issued on April 1, 198( North Carolina Register. Published bi-monthly by the Office of Administrative Hearings, P.O. Drawer 27447 Raleigh, North Carolina 27611-7447, pursuant to Chapter 150B of the General Statutes. Subscriptions one hundred and five dollars ($105.00) per year. North Carolina Administrative Code. Published in looseleaf notebooks with supplement ser\'ice by the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, North Carolina 27611-7447, pursuant to Chapter 150B of the General Satutes. Subscriptions seven hundred and fifty dollars ($750.00). Individual volumes a\'ailable. NORTH CAROLINA REGISTER Office ofAdministrative Hearings P. O. Drawer 27447 Raleigh, \C 27611-7447 (919) 733 - 2678 Julian Mann III, Director James R. Scarcclla Sr., Deputy Director MoUy Masich, Director APA Services Staff: Ruby Creech, Publications Coordinator Teresa Kilpatrick, Editorial Assistant Jean Shirley, Editorial Assistant ISSUE CONTEXTS I. EXECLTrV E ORDERS Executive Orders 151-152 924 II. AD.MIMSTRATrV E ORDER Administrative Order 926 in. FINAL DECISION LETT ERS Voting Rights Act 927 IV. PROPOSED RULES Administration State I'mployees Combined Campaign 929 Cultural Resources Archives and History 932 Human Resources Medical Assistance 932 Insurance Financial Evaluation Division .933 Licensing Boards Certified Public Accountant Examiners 935 Medical Examiners 935 V. FINAL RULES Correction Division of Prisons 938 Revenue Departmental Rules 968 Intangibles Tax 969 License and Excise Tax 969 VI. RRC OBJECTIONS 971 VII. RULES EVTALIDATED BY JUDICIAL DECISION 976 VIII. CUMULATrV E INDEX 978 NORTH CAROLINA RKGISTKR Publication Schedule (October 1991 - December 1992) Issue Last Dav Last Day Earliest Earliest Last Day + Date for for Date for Date for to Earliest Filing Electronic Public Adoption Submit Effective EiHng Hearing by Agency to RRC Date +*++++++++++*+***4 N+*+*****+*++***++++++++++*+++**+*+**+++*** *+**++ 10.01/91 10/15/91 11/01/91 11/15,91 12 02 91 1216/91 01,02,92 01/15/92 02 03 92 02/14 92 03/02,92 03/16/92 04,01,92 04/15,92 05,01,92 05/15 92 06/01,92 06/15/92 07,'01/92 07,15/92 08,03,92 08 14 92 09,01/92 09/15,92 10 01/92 10 15,92 11 02/92 II 16 92 12,01/92 12/15/92 09 10,91 09/24,91 10/ 1 1/91 10/24,91 11/07,91 II '21/91 12/09,91 12 20 91 01/10,92 01 24 92 02 10 92 02 '24 92 03/1192 03 25 92 04 10,92 04 24 92 05,11,92 05 25/92 06/10,92 06'2492 07 13 92 07 24 92 08' 1 1/92 08/25,92 09/10 92 09,24 92 10 12 92 10/23,92 11 06 92 11/24 92 09/1791 10,01,91 10/18-91 10 31/91 11/14, 91 12/02/91 12/16,91 12 31 91 01/17 92 01 31 92 02/17 92 03 02 92 03/18 92 04 01 92 04 17 92 05 01 92 05.18 92 06 01,92 06,17,92 07 01 92 07 20 92 07 3192 08/18 92 09 01 92 09 17 92 10 0192 10.19 92 10/30 '92 11 13 92 12 01 92 10/31/91 10/30/91 11/16/91 11/30/91 12/17 91 12/31/91 01/17,92 01/30,92 02,' 18 92 02 29 92 03 17 92 03 31 92 04/16/92 04/30 92 05/16 92 05 30 92 06/16.92 06/30 92 07/16/92 07/30 92 08'18 92 08 29 92 09 16 92 09, 30, 92 10 16 92 10 '30 92 11/17/92 12/01/92 12,16/92 12/30,92 10,3191 11/14.91 12/01/91 12/15/91 01/01/92 01 15,92 01/31,92 02,14 92 03 04 92 03 15 92 04 01 92 04 15 92 05 01 92 05 15 92 05 31 92 06 14 92 07 01 92 07 15,92 07 31 92 08 14 92 09 02 92 09 13,92 10 01,92 10 15,92 10 31 92 11 14,92 12,02 92 12 16 92 12 31 92 01 14 93 11,20 91 11,20,91 12 20'9I 1 2/20 '9 1 01/20,92 01/20 '92 02/20,92 02 20 92 03/20 92 03 '20 92 04 20 92 04 20 '92 05/20 '92 05 '20 92 06,20 92 06 20 92 07 20 92 072092 08/20 92 08 20 92 09,'20 92 09/20 92 10 10' II' II 12 20,'92 20 92 20 92 20 92 20,92 12 20 92 01/20/93 01 20 '93 02/01/92 01/01/92 02/01/92 02,01/92 03/01/92 03 01/92 04,01,92 04,01,92 05 01,92 05 01/92 06 01,92 06,0192 07,01/92 07,01/92 08,01.92 08 01 92 09,01 92 09,01,92 10 01/92 10 01 92 11 01 92 II 01,92 12,01/92 12/01,92 oroi'93 01 01 93 02 01,93 02 01 '93 0301/93 03/01/93 * The "Earliest Effecti\'e Date" is computed assuming that the agency follows the publication schedule above, that the Rules Rexiew Commission approves the nde at the next-calendar month meeting after submission, and that RRC delivers the rule to the Codifier of Rules fn-e (5) business days before the 1st of the next calendar month. EXECUTIVE ORDERS EXECL TIVE ORDER NUMBER 151 GOVERNOR'S ADVISORY COMMISSION ON MILITARY AFFAIRS By the authority vested in me as Governor by the Constitution and laws of North Carolina, IT IS ORDERED: Section 1. ESTABLISHMENT The Governor's Advisory Commission on Mil-itary Affairs is hereby re-estabHshed. It shall be comprised of thirty (30) members. Fifteen (15) members are to be appointed by the Governor and serve for terms of two (2) years at the pleas-ure of the Governor. In addition to the fifteen (15) appointed members the following fifteen (15) will be permanent members: The Lieuten-ant Governor of North Carolina; the Chair-persons of the Military Affairs Committees of the North Carolina House of Representatives and the North Carolina Senate; the Secretaries of the Departments of Administration, Transportation, Environment, Health and Natural Resources, Crime Control and Public Safety, and Economic and Community Development; the base commanders of Fort Bragg, Camp Lejeune, Cherry Point and the Elizabeth City Coast Guard Air Station, the Wing Commanders of the 4th Tactical Fighter Wing and the 3 1 7th Tactical Airlift Wing and the Adjutant General of the North Carolina National Guard. The Go\emor shall designate one of the members as Chair-person. Section 2. MEETINGS The Commission shall meet regularly at the call of the Chairperson, the Governor, or the Secre-tary of Crime Control and Public Safety. Section 3. DUTIES The Commission shall have the following du-ties: (a) Provide a forum for the discussion of is-sues concerning major military' installa-tions in the State, active and retired military personnel and their families. (b) Formulate goals and objecti\es which en-hance cooperation and understanding be-tween the military components, the communities, our congressional deleg-ation, the general public, and State, fed-eral, and local governments. (c) Strengthen the State's role in securing de-fense related business for North Carolina businesses and in selling North Carolina products to North Carohna military bases. (d) Collect and study information related to supporting and strengthening the military presence within the State. (e) Review proposed military affairs legis-lation. (f) Advise the Governor on measures and ac-tivities which would support and promote defense installations and military families within the State. Section 4. ADMINISTRATION Support staff for the Commission shall be pro-vided by the Department of Crime Control and Pubhc Safety. Members shall serve without compensation but may receive reimbursement, contingent upon the availability of funds, for travel and subsistence in accordance with N.C.G.S. 138-5, 138-6, and 120-3.1. Section 1 EFFECTIVE DATE AND EXPIRATION The Order shall be effective immediately. Done in the Capital City of Raleigh, North Carolina, this the 1 1th day of September, 1991. EXECUTIVE ORDER NUMBER 152 ESTABLISHING THE PERSIAN GULF WAR MEMORIAL COMMISSION WHEREAS, one-sixth (1/6) of the nearly 500,000 troops ser\'ing in the Persian Gulf War were residents of, or stationed in, North Carolina; and, WHEREAS, a number of these servicemen and servicewomen from North Carolina gave their lives for their country during the Persian Gulf War. THEREFORE, by the authority vested in me by the Constitution and laws of North Carolina, IT IS ORDERED: Section 1. ESTABLISHMENT There is hereby established the Persian Gulf War Memorial Commission. It shall be com-prised of the following: 1. Two members of families who lost relatives in the Persian Gulf to be appointed by the Governor. 2. The base commanders of (a) Fort Bragg, (b) Camp Lejeune, (c) United States Marine Corps Air Station at Cherry Point, (d) Seymour Johnson Air Force Base, (e) Pope rVir Force Base, 6:14 NORTH CAROLINA REGISTER October 15, 1991 924 EXECUTIVE ORDERS (f) The Coast Guard Station at Fort Macon, (g) New River Aix Station, and (h) Elizabeth City Coast Guard Air Station, or theij designees. North Carolina elected bv the the North Carolina 3. One member from the N'eterans Council to be Council. 4. One member from \"eterans .Affairs Commission to be elected by the Commission. 5. The Adjutant General of the North CaroUna National Guard. 6. The Senior Commander of the United States /Vrmy Reser\'e from North Carolina, deployed to the Persian Gulf. 7. The Lt. Governor of North Carolina. 8. The Secretary of the North Carolina De-partment of Administration. 9. The Secretap.' of the North Carolina De-partment of Crime Control and PubHc Safety. 10. The Director of the United States Depart-ment of Veteran .Affairs Regional Office. From among the membership the Governor shaU appornt a Chairperson. The Commission shall meet at the call of the Chairperson. Section 2. PURPOSE The purpose of the Commission is to select a site for construction of a memorial, develop plans for funding, select a design for the memorial, and select a construction firm to construct the me-morial. To this end the Commission shall es-tablish itself as a nonprofit, Chapter 501c(3) corporation for the purpose of receipt of and ex-penditure of donated funds. At the completion of each of the aforementioned the Chairperson shall advise the Go\'emor of the Commission's fmdrngs and results. Section 3. ADMINISTRATION .Administrative support for the Commission shall be provided by the Department of Admin-istration's Division of Veterans .-Affairs. There shall be no per diem paid to members of the Commission; however, necessary tra\'el and subsistence allowance mav be paid in accordance with N.C.G.S. 138-5, 138-6, and 120-3.1. Section 4, EFFECTIVE D.ATE This Order shall be effective immediately. Done in the Capital City of Raleigh, North Carolina, this the 1 1th day of September, 1991. 925 6:14 NORTH CAROLISA REGISTER October 15, 1991 ADMINISTRA TIVE ORDER STATE OF NORTH CAROLCSA Office of Administrative Hearings ORDER Pursuant to G.S. 7A-752, Julian Mann, III, Chief Administrative Law Judge of the Office of Administrative Hearings, hereby duly designates Fred Gilbert Morrison, Jr., to ser\''e in the capacity of Senior Administrative Law Judge with all the rights, duties and privileges as conferred in said Section. Witness may hand and seal this the 1st day of October, 1991. s/Julian Mann, III Chief Administrative Law Judge 6:14 NORTH CAROLINA REGISTER October 15, 1991 926 VOTING RIGHTS ACT FINAL DECISION LETTERS [G.S. I20-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the A ttorney General of the United States in which a final decision is made concerning a "change af-fecting voting" under Section 5 of the Voting Rights Act of J 965 be published in the North Carolina Register. / U.S. Department of Justice Civil Rights Division JRD:LLT:NT:gmh DJ 166-012-3 Voting Section 91-2483 P.O. Box 66128 Washington, D.C. 20035-6128 September 13, 1991 Richard J. Rose, Esq. Poyner & Spruill P. O. Box 353 Rocky Mount, North Carolina 27802 Dear Mr. Rose: This refers to six annexations (Ordmance Nos. 0-89-58, 0-90-17, 0-90-62, 0-90-63, 0-91-1, and 0-91-13); the designation of the annexed areas to election districts; and the delay in the 1991 municipal election to May 1992 for the City of Rocky Mount in Edgecombe and Nash Counties, 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 July 15, 1991. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis-tration of Section 5 (28 C.F.R. 51.41). Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division By: Gerald W. Jones Chief Voting Section 927 6:14 NORTH CAROLINA REGISTER October 15, 1991 VOTING RIGHTS ACT FINAL DECISION LETTERS U.S. Department of Justice Civil Rights Division JRD:LLT:TGL:mjnb DJ 166-012-3 Voting Section 91-2735 P.O. Box 66128 Washington, D.C. 20035-6128 September 18, 1991 DeWitt F. McCarley, Esq. City Attorney P. O. Box 7207 Greenville, North Carolina 27835-7207 Dear Mr. McCarley: This refers to the annexation [Ordinance No. 2327 (1991)] and the designation of the annexation to an election district for the City of Greenville in Pitt County, North Carolina, submitted to the At-torney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on July 25, 1991. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis-tration of Section 5 (28 C.F.R. 51.41). Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division By: Gerald W. Jones Chief, Voting Section 6:14 NORTH CAROLINA REGISTER October 15, 1991 928 PROPOSED RULES TITLE 1 DEPARTMENT OF ADMIMSTRAIION lyotice is hereby given in accordance with G.S. 150B-2I .2 that the Department of Administration intends to amend rule(s) cited as I NCAC 35 .0103. .0202, .0301 - .0303, .0403. 1 he proposed effective date of this action is February I, 1992. 1 he public hearing will be conducted at 10:00 a.m. on November 14, 1991 at Commission Room 5034, Department of Administration, 116 West Jones Street. Raleigh, XC 27603-S003. J\eason for Proposed Action: To amend rules to provide for greater efficiency in the manage-ment of the State's Employees Combined Cam-paign. \^ omment Procedures: .Any interested person may present hisjher comments either in writing prior to or at the hearing or orally at the hearing. Any person may request information, permission to be heard or copies of the proposed regulations by writing or calling David McCoy, Department of Administration, 116 West Jones Street, Raleigh. NC 27603-S003. CHAPTER 35 - STATE EMPLOYEES COMBINED CAMPAIGN SECTION .0100 - PLKPOSE AND ORGANIZATION .0103 ORGANIZATION OF THE CAMPAIGN The Campaign Organization is as follows: (1) Ch;iir. F-ach year the Governor wtU may appoint a State Combined Campaign Di-rector from one of the E.\ecuti\e Cabinet or University Administration agencies. TTie Campaign Director or the Campaign Direc-tor s designee will serve as chair of the Campaign. The responsibilities of the Chair include setting the dates and approving the pubhshed materials for the Combined Cam-paign, contracting for the Statewide Cam-paign Manager, and serving as chair of the S.E.C.C. advisory' committee. (2) Statewide Combined Campaign Ad\isory^ Committee. This ongoing committee serves as a central application point for all charita-ble organizations applying to participate in the S.E.C.C. »«4 . hcill dotL'nninL' 4 t-ht» c*f»- plicant agonciiH' moot tb<* appro'. i.'d cnt e ria \i^4^ m R«4e r0343 ef t4«* Chapter. The Committee recommends overall policy for the Campaign to the Governor, the Cam-paign Director and necessary state agencies and sets the criteria for participation by charitable (organizations. The Committee re\iews the recommendations made by the Statewide Campaign .Manager and accepts or rejects its recommendations. The Com-mittee is composed of ten members ap-pointed by the Campaign Director. .Members of the Committee will initially serve staggered terms of one, two, and three calendar years determined by the Campaign Director. As each member's term expires, the replacement member will serve a three calendar year appointment. (3) Statewide Campaign Manager. Determines if the applicant agencies meet the approved criteria listed in Rule .0202 of this Chapter. Serves as the financial administrator for the Combined Campaign and as such is re-sponsible for receivmg reports from the local Combined Campaigns, for transmitting to each local campaign its share of the state emplovec^ pa\ToU deduction funds, and for preparing an end of campaign report which summarizes all fiscal campaign actnitv m-cludmg local audits. The Statewide (Cam-paign Manager is also responsible for the pnnting and distribution of the pledge form, campaign report fonn, and collection cinel-opes. (4) (4^ Local Campaign Chair. The Governor, if asked by the local charitable organizations accepted in to the Combined Campaign, ¥r4U may appoint a an area representative b+ from either state government or the L'ni\'ersity h* A«» a*ea to serve as the local chair. This person will be responsible for forming a lo-cal advisory committee for soluntocr recruitment of volunteer state employees, approval of local campaign literature, ap-proval, afni the establishment of local goals as needed, and the distnbution of any un-designated funds made available for distrib-ution. f4) Ma'.tLT j\ccount. Sen or. a*^ t+»t» financial admini!. trutor f^f ih* Combined (jampaign. i*ft4 a* such » ro 'jponr.iblo fof roocising »- porta from t4«* local Combined Cximpiugnf. ; fef trunt.mitting te each local campaign ite oharo ef tk# f.tat e employeori payroll 4t»- duction fundo: aftd fof preparing aft eft4 f4~ campaign report which r. unimarij'eL. all fiscal campaign acti'i ity including local lUidit -. . i^ master account i* ake- responsible fe* tl» printing aft4 distribution ei tbe pledge 929 6:14 NORTH CAROLINA REGISTER October 15, 1991 PROPOSED RULES form, campaign R'port form, aft4 coUoction en^'olopos. (5) Local Campaign Manager. Once applica-tions for acceptance into the campaign have been recommended to the Committee by the Statewide Campaign Manager, approved, a list of all accepted organizations will he pre-pared by the Stato>'i'ido Combinod Com paign AdvirfOPr f Committoo Statewide Campaign Manager and distributed to all applicants. The State Campaign Manager will submit to the State Combined Cam-paign Director the name of an agency to serve as the local campaign manager. The Campaign Director will approve or reject the State Campaign .Manager's recommen-dation and has the right to name the Local Campaign .Manager. 44*& oraanizations wiU-decide among thomnQlvoc which agonoy wiji ooPi O a* tfee local campaign manager. Pef Ae purpose &f deciding e«- tlw manager, Ae accepted agencies wiU- be divided iftto three groups, each »f ' ' i hich wiili have e«# vote. ¥be groups vrili h^ (a) Unitod Wayt fb^ National Health: sif^ fe^ Independent i\genoies. The local campaign manager is responsible for the printing and distribution of campaign literature, the collection of pledge reports and en\elopes from the state agency volun-teers, the development of campaign reports, and the forwarding of one copy of each payroll deduction pledge to the Statewide Campaign Manager master account. 4ft ad-dition, aft end of campaign report shall be seft* te tl*e master account for inclusion in the required fiscal reports. Note: A contract between the state and the Statewide Campaign Manager, and the state and local manager, will be executed in order to de-velop an acceptable audit trail. The contract contracts will allow a reasonable charge for cam-paign expenses to be claimed by the Statewide Campaign Manager and the local manager. This amount ><^ h% approved by the state. AU terms and conditions of these contracts are subject to re\iew and approval by the Campaign Director. Statutoty Authority G.S. 1438-10; 143-3.3. SECTION .0200 - ELIGIBLE ORGANIZATIONS .0202 CRITERIA FOR ACCEPTANCE Organizations must meet the following criteria to be accepted as participants in the Combined Campaign: (1) The organization must be licensed to so-licit funds in North CaroUna. (2) Must be directed by an active Board of Directors, which meets regularly and whose members serve without compensation. (3) Have tax exempt status for both the IRS and N.C. tax purposes. (4) Must prepare and make available to the general public an annual financial report, which vs certified by aft independent public accountant, or IRS Form 990. An excep-tion to this requirement is provided for any organisation which has filed its Articles of Incorporation with the Secretary' of State's Office as of March \^ of the preceding year of the current campaign. (5) If fundraising and administrative expenses are in excess of 25 percent of total revenue, must demonstrate to the satisfaction of the SECC that those expenses for this purpose are reasonable under all the circumstances of the case. (6) Must certify that all publicity and promo-tional activities are truthful and non-deceptive. (7) Must agree to the confidentiality of the contributor list, and must promise no unau-thorized use of this list. (8) Must permit no payments of commissions, kickbacks, finders fees, percentages, bonuses, or overrides for fundraising, and permit no paid solicitations of the public. (9) Must have a policy of non-discrimination on the basis of race, color, religion, sex, age, national origin or physical or mental hand-icap for clients of the agency, employees of the agency and members of the governing board. Agencies which have been organized along religious Lines, or which are organized to serve persons of a particular sex or race may be considered for eligibility if a bona fide purpose for organizing along such lines can be shown. (10) Must pro\ide benefits or services within the local community, meaning that employ-ees in the solicitation area or their families should be able to receive services from the agency within a reasonable distance, or re-ceive benefits from voluntary agencies. Ex-amples of services are: (a) research and education in the health and welfare or education fields; (b) family and child care services; (c) protective services for children and adults; (d) services for children and adults in foster care; (e) services related to the management and mamtenance of the home; 6:14 NORTH CAROUNA REGISTER October 15, 1991 930 PROPOSED RULES (f) day care scnices for adults and children; (g) transportation sen.'ices, information refer-ral and counseling sersices; (h) the preparation and deliNcr." of meals; (i) adoption ser\ices; (j I emergency shelter care and relief ser%ices; (k) safety services; (1) neighborhood and community organiza-tion services; (mj recreation services; (n) social adjustment and rehabilitation ser- \ices; (o) health support senices; or (p) a combination of ser\'ices designed to meet the needs of special groups such as the el-derly or handicapped. Ho\ve\'er, an international organization which provides health and welfare services overseas, whose acti\ities do not require a local presence and which meet other eligi-bihty criteria, may be accepted for partic-ipation in the campaign. Statutotj Authority G.S. 143-10: 143-3.3. SECTION .0300 - .\PPI.IC\TION PROCESS .\ND SCHEDLLE .0301 SCHEDLLE Complete applications must be submitted to the State Campaign Committee by March 4- Febru-arv j_5 annually to be Included m the fall cam-p. ugn. Incomplete applications v4ii mav not be considered by the Committee. The Chair wiU forward all application materials to the Statewide Campaigi Manager within three working days after the closin'.: deadline. The Statewide Cam-paign .Manager wiU report to tlie Committee its recommendation on each application within three weeks o\_ the closmg deadline. The Com-mittee shall affirm or reiect the recommendation bv the Statewide Campaign Manager and wiU inform the Statewide Campaign Manager of its decision. tion under 150B-23 within iO 15 davs of notiti-cation dispatch date rocoi'i ing notice of the appeal determination. An appeal wiU not be al-lowed to delay the start of the campaign. Statutory! Authority G.S. 1438-10; 147-62. .0303 FORM AND CONTENT OF .\PPLIC.\TION AH organizations seeking funding must submit an application to the state campaign. The ap-plication must include the State Emplo\ees Combined Campaign Certificate ot^ Compliance. Included in or attached to the Certificate of Compliance must be: (1) A letter from the Board of Directors indi-cating interest. (2) A complete description of services provided, and the ser\ice area of the organization. (3) The most recent audited fmancial statement prepared bv a CPA. An exception to this requirement is provided for anv organization which has tiled its .-Vrticles of Incorporation with the SecretaPv' States Office of (4) (5) (6) (7) March _L of the preceding Near of the current campaign, fof (4*e prt."> iou 'j ; » L'ar. including tbe moot recent audit. A board statement of assurance of non-discrimination. .A description of the origin, purpose and structure of the organization. A list of the current members of the Board, including addresses. A letter certifying compliance with the el-igibility standards listed m Rule .0202 of this Chapter including tax exempt status, licens-mg, and showing the percentage of funds expended in the categories of Program and Service, Management and General (.Admin-istrative) and Fundraising. Statutory Authority G.S. 143B- 10; 143-3.3. SECTION .0400 - GENERAL PRO\ ISIONS Statutory Authority G.S. 143B-10: 143-3.3. .0302 RESPONSE .AH apphcants will be notified bv the Statewide Campaign Manager of the ir accjptanco e* Fe-joction the Committee s decision within 30 days of the closing deadhne. An applicant who is dissatisfied with the determination of its applica-tion may file an appeal to the State .Advisory Committee within 10 da\s of the notification dispatch date. .An apphcant who is dissatisfied w ith the appeal determination of the Committee may commence a contested case by filing a peti- .0403 PA^ ROLL DEDUCTION Payment mav be made bv pavroU deduction, cash, pledge, or personal check. If an employee chooses to use the payroll deduction method of contributing, he she must agree to having the deduction continue for one year with equal amounts being taken from each check (montlily or biweekly depending on the payroU), All de-ductions will start with the January payroll and continue through December. If the emplo\"ee discontinues employment, or actively chooses to discontinue payment, the state will not be re-sponsible for the collection of the unpaid pledge. 9n 6:14 SORTH CAROLINA REGISTER October 15, 1991 PROPOSED RULES No deduction will be made for any period in which the employee's net pay, after all legal and pre\iously authorized deductions, is insufficient to co\er the allotment. No adjustments will be made in subsequent periods to make up for de-ductions missed. Stalnloty Authority G.S. I43B-I0; 143-3.3. TITLE 7 - DKPAR IMENT OF CULTURAL RESOURCES iSotice i.% hereby given in accordance with G.S. 1508- 2 1. 2 that the Cultural Resources!Archives and History intends to adopt rule(s) cited as 7 NCAC4P'.00l6. 1 he proposed effective date of this action is February I, 1992. (3) Materials may not be removed from the offices of the Civil War Roster Branch. Thhe public hearing will be conducted at 10:00 a.m. on November IS, 1991 at Room 305, Ar-clmes and History, State Library Bldg., 109 E. Jones Street, Raleigh. Ixeason for Proposed Action: To provide for public use of research fdes in the Civil War Roster Branch and to implement a fee for photocopies of these research materials. C ommcnt Procedures: Written comments to Dr. Wm. S. Price Jr.. 109 E. Jones Street. Raleigh 27601-2807 by 5:00 p.m., Friday, No-vember 15. 1991. CHAPTER 4 - DIMSION OF ARCIH\ ES AND HISTORY SUBCHAPTER 4P - HISTORICAL PI BI.ICAIIONS SECnON .0016 CI ML WAR ROSTER RESEARCH FILES REGULATIONS Regulations governing public use of the research fdes in the othces of the ('nil War Roster Branch are as follows: ( 1 ) Direct access to the service record materials in the tiles of the (ri\il War Rosier Branch shall be bv appointment only at reasonable limes under the supcr\ision of the head of the Civil War Rosier Branch. (2) Direct access shall be granted i£ in the judgment of the head a[ the Ci\il War Ros-ter Branch, the research to be undertaken cannot be duplicated in the search room of the stale archnes. (4) Photocopies will be made on an ^as you wait" basis if the equipment and an operator are available. The costs of such photocopies shall be the same as those charged by the state archives as contained in Subchapter 4.\1, Section .01 UP, Rule .011)5(8), cM this Chapter. Statutory Authority G.S. 121-6(a); l43B-62{ 1 )a..g. I2I-4(4).(5).(I4): TITLE 10 - DEPARTMENT OF HUM.AN RESOURCES I\ otice is hereby given in accordance with G.S. 150B-21.2 that the Department of Human ResourcesI Division of Medical .4 ssislance intends to amend rule(s) cited as 10 NCAC 26H .0504. 1 he proposed effect'n>e date of this action is Febmary 1, 1992. 1 he public hearing will be conducted at 1:30 p.m. on November 14, 1991 at the North Carolina Division of .Medical Assistance. 19S5 L'mstead Drh'e. Room 297. Raleigh. North Carolina 27603. I\eason for Proposed .Action: The Dhision now has hospital lower le\'el skilled care and interme-diate care payment rates available. Coomment Procedures: Written comments con-cerning this amendment must be submitted by: November 14, 1991, to: Division of .Medical As-sistance, 19S5 Umstead Drive, Raleigh. N.C. 27603, ATTN.: Bill Hottel. 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 26 - MEDICAL ASSISTANCE SLBCHAPTER 2611 REIMBURSEMENT PLANS SECTION .0500 - REIMBl RSEMENT FOR SERMCES .0504 INPATIENI HOSPITAL: INAPPROPRIAIE LE\ EL OF CARE (a) No 44ti* i .tulu agency may grant a maximum ef threo administrative days will be granted to arrange for discharge of a patient to a lower le\'el-of-care. Willi piior approval bv tl» State .Medicaid jNgency. 1 lowever. the hospital may be reimbursed fof day;. » eKCLVi Cj ef y*** three rt4- 6:14 NORTH CAROLL\A REGLSTER October L\ 1 991 932 PROPOSED RULES miniotrati'i L' days at the state-wide average rate for tfee particular Ici ol of caro intermediate nurs-ing care, skilled nursing care or \entilator-depcndcnt nursing care needed in the event a lo'iver lu'i ul ol caro bed in a Medicaid approved health care institution is not available. The hos-pitd must, however, make e\er\- effort to place the recipient in an appropriate institution, ^'ithin i}pte tliroij 4»¥ admini -.tratis e time aUowanco. Prior appro \al bv the State Medicaid agency for the lower lc\el of care is required m accordance with ]n N( AC 26B .11 IPS and K) NCAC 26B .(U14. (b) This policy applies to: (1) acute care hospitals; (2) mental hospitals: (3) speciality hospitals. Authoriiv G.S. 10SA-25(b); 42 C.F.R. 447.253; S.L. !9S5. c. 479, s. 86. TITLE 1 1 - DEPARTMENT OF INSL RANGE l\otice is hereby given in accordance with G.S. 150B-21.2 that the S.C. Department of Insurance intends to adopt ruleisl cited as 11 SC.-iC 1 IC .0130. Thhe proposed effcctix-e date of this action is Fcbruai-v 1. 1992.' 1 nstructions on hmv to demand a public hearing {must be requested in writing within 15 days of notice): Submit in writing, by certified mail, re-turn receipt requested, the request to William K. Hale. Dcpt. of Insurance, P.O. Box 26387, Raleigh. .\.C. 27611. iXeason for Proposed .Action: The nde replaces statutes that were inadvertently repealed she montlis before the effecti\-e date of the statutes that will replace the repealed statutes. Coommenl Procedures: Written comments may be sent to Ray .Martinez, P.O. Box 26387, Raleigh. SC 2~'611. Anyone having questions should call Rav Martinez'at (919) 733-2002, or Ellen Sprenkeiat (919) 733-4529. LLditor's Sote: This Rule was filed as a tempo-rary- rule effecti\-e September 12. 1991 for a period of'ISO day's to expire on .March 10. 1992. CH.\PIKK 11 - UNANCIAL EV.ALL.\TION DIMSION SUBCHAPTER IIC - ANALYSIS AND EXAMIN.\T10NS SECTION .0100 - GENERAL PROVISIONS .0130 CREDrr FOR REINSURANCE (a] As used m this Rule and in G_S. 5S-7-30 and G.S. 58-7-32: ( 1) "Insurance risk" means an uncertaintv re-garding the ultimate amount of anv claim pa\ment (underwnting nsk) or an uncer-tainty regarding the timing of such pa\- ments (timing risk). (2) 'insurer" includes an underwriting mem- 01 Hi her of an insurance exchange. 'LiabUitN" includes all reserves. "Reinsurance" means a transfer of insur-ance nsk from a ceding insurer to an as-suming insurer. (5) "Same standards of soh encv" means, at a minimum, the capital and surplus re-quirements applicable to a domestic insurer transactmg the same lines of irv surance or reinsurance. (b) Credit for reinsurance shall be allowed a domestic ceding insurer as either an asset or a deduction from liability on account of reinsur-ance ceded only when: rhe reinsurance is ceded to an assuming insurer that is hcensed to transact insur-ance or reinsurance or otherwise accred-ited as a reinsurer in this State: or licensed in aX least one state that employs stand-ards regarding credit for reinsurance sub-stantially similar lo_ those applicable under this Paragraph and the assuming insurer conforms to the same standards of solvency that would be required of the insurer if it were hcensed in this State: or (2) The reinsurance is ceded to an assuming insurer that maintains a trust fund in a Inited States bank or trust company for the payment of the \alid claims of its I nited States polic\'holdcrs and ceding insurers and their assigns and successors in interest. To enable the Commissioner to detenninc the sufticiencv of the trust fund, the assuming insurer shall annualh' report to the Commissioner infonnation substantially the same as that required to be reported bv licensed insurers on the National .Association of Insurance Com-missioners annual statement fonn. In the case of a single assuming insurer, the trust shall consist of a trusteed account repres-enting the assuming insurer s liabilities at-tnbutablc to business wntten in the I nited States and. in addition, shall in-clude a trusteed surplus of not than 933 6:14 NORTH CAROLIN.A REGISTER October 15, 1991 PROPOSED RULES twenty milUon dollars ($20.000,000). In the case of a group of individual unincorporated underwriters, the trust shall consist of a trusteed account repres-enting the group's liabilities attributable to business written in the United States and, in addition, shall include a trusteed surplus of not less than one hundred million dollars ($100.000.000); and tjie group shall make available to the Com-missioner an annual certification of the solvency of each underwriter by the group's domiciliary regulator and its inde-pendent public accountants. This trust shall be established in a form approved by the Commissioner in a United States bank or trust company that is a member of the Federal Reserve System. The trust instrument shall provide that contested claims shall be \'alid and enforceable upon the final order of any court of competent jurisdiction in the United States. The trust shall vest legal title to its assets in the trustees of the trust for its l.'nited States (4) policyholders and ceding insurers and their assigns and successors m interest. The trust and the assuming insurer shall be subject to examination as determined by the Commissioner. I he trust de-scribed in this Subparagraph must remain in effect for as long as the assuming insurer has outstanding obligations due under the reinsurance agreements subject to the trust. No later than I-ebruar\' 28 of each year the trustees of the trust shall report to the Commissioner in wnting, set forth the balance of the trust, and list the tRist's investments at the preceding year's end; and shall certify the date of termi-nation of the trust, if so planned, or certify that the trust shall not expire prior to the following December 31; or (3) The reinsurance is ceded to an assuming insurer not meeting the requirements of Subparagraphs (b)( 1) or (b)(2) of this Rule, but only with respect to the insur-ance of risks located in jurisdictions other than the United States where such rein-surance is required by applicable law or regulation of that jurisdiction: and The reinsurance is documented by a pol-icv, certificate, treaty, or other fonn of of his authority to assume reinsurance for and on behalf of the assuming insurer. The evidence shall consist of either an ac-ceptable letter of authority executed by an authorized officer of the assuming insurer or a copy of the actual agency agreement between the underwriting manager or agent and the assuming insurer; and the evidence shall be specific as to the classes of business within the authority and as to the term of the authority. (c) If the assuming insurer is not licensed or accredited to transact insurance or reinsurance in this State, the credit permitted by Subparagraphs (b)(1) and (b)(2) of this Rule shall not be allowed unless the assuming insurer agrees in the reinsur-ance agreements: (1) That in the event of the failure of the as-suming insurer to perform its obligations under the terms of the reinsurance agree-ment, the assuming insurer, at the request of the ceding insurer, will submit to the jurisdiction of any court of competent ju-risdiction in any state of the United States, will comply with all requirements neces-sary to .give that court jurisdiction, and will abide bv the final decision of that court, or of any appellate court in the event of an appeal; and (2) "1 hat the assuming insurer will designate the Commissioner as its true and lawful attorney upon whom may be served any lawful process in any action, suit, or pro-ceeding instituted bv or on behalf of the ceding company. This Paragraph shall not conflict with the obli-gation of parties to a reinsurance agreement to arbitrate their disputes, if such an obligation is created in the agreement. (d) A reduction from liability for reinsurance ceded to an assuming insurer that does not meet the requirements of Paragraphs (a) through (c) of this Rule shall be allowed in an amount that does not exceed the liabilities carried by the ced-ing insurer for funds held bv or on behalf of the cedmg insurer, including funds held in trust for the ceding insurer, under a reinsurance contract with the assuming insurer as security for the payment of obligations under the contract, if that security is held in the United States subject to withdrawal solely by, and under the exclusi\e agreement that is properly executed by an control of the ceding insurer; and, in the case of authorized officer of the assuming iasurer. In the e\ent that the reinsurance is ceded through an underwriting manager or agent, the manager or agent shall pro\ide to the domestic ceding insurer evidence a trust, held in a United States bank or trust company that is a member of the Federal Re-sen'e System. "I his secunty may be in the form of Q} Cash; 6:14 NORTH CAROLINA REGISTER October 15, 1991 934 PROPOSED RULES (2) Securities that are listed by the Securities \aluation OtTicc of the National Associ-ation of Insurance Commissioners and that are qualified as admitted assets; (3) ("lean. irre\ocable, unconditional letters of credit, issued or confirmed bv a bank or trust companx that is a member of the { ederal Reser\e System: or (4) .\n\' other form ot secunty that is accept-able to the Commissioner. (e) A foreign or alien insurance company may be admitted and authorized to do business when it satisfies the Commissioner that it is m sub-stantial compliance with the pro\isions of this Rule. G.S. 5S-7-31). and G.S. 58-7-32. Statulory Auihoniy G.S. 5S-2-40{ Ij; 5S-7-I. TITLE 21 - OCCl PATIONAL LICENSING BOARDS Nootice is hereby given in accordance with G.S. 150B-21.2 that the \.C. Stale Board of Certified Public .-iccountant Examiners intends to amend ruk(s) cited as 2/ .\CAC 8G .0306; and adopt ruleis) died as 21 SC.-iC SG .03/3. Thhe proposed effective dale of this action is .March I, 1992. Thhe public hearing will be conducted at 10:00 a.m. on December 16, 1991 at the \.C. State Board of CP.4 Examiners, 1 10 J Oberlin Road. Suite 104, Raleigh, SC 2"605. IXeason for Proposed Action: The Board was requested by licensees for amendment to the rules. K^ ommenl Procedures: Any person interested in these rules may present oral comments relevant to the action proposed at the public rule-making hearing or deliver written comments to the Board office not later than 5:00 p.m., Monday, Decem-ber 2, 1991. .4 nyone planning to attend the hear-ing should notify the Board office by 5:00 p.m. on .Monday, December 2, 1991. whether they wish to speak on the proposals and whether they will speak in favor or against them. Anyone speaking on the proposals will be limited to 10 minutes. Editors .\oie: 21 .\CAC SG .0313 has been filed as a temporaiy adoption effective September 25. 1991 for a period of ISO days to expire on March 22, 1992. CFIAPTER 8 - BO.\RD OF CERTIFIED PUBLIC ACCOLNTANT EXAMINERS SLBCHAPTER 8G - PROFESSIONAL ETHICS AND CONDUCT SECTION .0300 - OTHER RESPONSIBILITIES .0306 FIRM NAME OR STYLE OF A PRACTICE Any person, partnership, professional corpo-ration or professional association engaged in the practice of public accountancy (as defined in 21 NCAC 8A .0307 and .0308), other than existing firms practicing in the name of current or former partners or shareholders, must use the uords "Certified Pubhc Accountant(s)" or "CPA(s)" as part of or with their firm name. Use by a CPA practicing public accountancy by himself of any name other than his own name, or use by a partnership, a professional corporation or a professional association engaged in the practice of public accountancy of any name other than the names of one or more of its current or former partners or shareholders, must be approyed in advance by the Board. Statutory .Authority G.S. 55B-5; 93-12(9). .0313 FIRM NAME Notwithstanding any other provisions of these Rules, any existing firm practicing m the name of current or former p^irtners or shareholders is not required to use the words "Certified Public -\ccountant(s)" or "CF'.\(s)" as part of or with its firm name. Statutory Authority G.S. 55B-5; 93-12(9). 'k'k-k'k'k'k-k-k'k'k'k'k-k-k'k-k'k-k ly Otice is hereby gi\en in accordance with G.S. 150B-21.2 that the Board of Medical Examiners of the State of S'orih Carolina intends to amend rule(si cited as 21 \CAC 32B .0101, .0305, .0314 - .0315. 1 he proposed effective date of this action is February 1, 1992.' 1 he public hearing will be conducted at 8:00 a.m. on Sovember 14. 1991 at the Embassy Suites Hotel. 4700 Creedmoor Road. Raleigh. S.C. JXeason for Proposed .Action: Rule .0101 - De-finition is added to define a term included in amendments to titles within Subchapter 32B. Rule .0305 - To provide other avenues for licensure. 935 6:14 SORTH CAROLIS.A REGISTER October 15, 1991 PROPOSED RULES Rule .0314 - To reflect amendment to Rule .0305. Rule .03/5 - Allow the Board discretion in ac-cepting continuing medical education as a quali-fication for licensure. (^ omment Procedures: Persons interested may present oral statements relevant to the actions proposed at a hearing to be held as indicated above. Written statements not presented at the hearing should be directed to the following ad-dress: Administrative Procedures, NC Board of Medical Examiners. P.O. Box 26808, Raleigh, NC 27611-6808. CHAPTER 32 - BOARD OF MEDICAL EXAMINERS SLBCHAPTER 32B - LICENSE TO PRACTICE MEDICINE SECTION .0100 - GENERAL .0101 DEFINITIONS The following definitions apply to Rules within this Subchapter: (1) ACGME - Accreditation Council for Graduate Medical Education. (2) AOA - American Osteopathic Association. (3) Board - Board of .Medical Examiners of the State of North Carolina. (4) ECP'.MG - Educational Commission for Foreign Medical Graduates. (5) Fifth Pathway - an avenue for licensure as defmcd in the Directory of Accredited Resi-dencies 1977-1978, /Vmcrican .Medical Asso-ciation, pp. 30-32. The Directory is adopted by reference under G.S. 1 SOB- 14(b). (6) FLEX - Federation Licensing Examina-tion. (7) LC.ME - Liaison Commission on Medical Education. (8) SPEX - Special Purpose Examination. (9) A.MA Physician's Recognition Award - A.MA recognition of achievement by physi-cians who have voluntarily completed pro-grams of continuing medical education. (10) .American Specialty Boards - specialty boards approved by the American Board of .Medical Specialties. Statutory! Authority G.S. 90-6. SECTION .0300 - LICENSE BY ENDORSEMENT .0305 EXAMINATION BASIS FOR ENDORSEMENT (a) To be eligible for license by endorsement of credentials, graduates of medical schools ap-proved by the LCME or AOA must supply cer-tification of passing scores on one of the following written examinations: (1) National Board of Medical Examiners; FLEX - under R«te M4i Rule .0314 of this Section; (2) (3) Written examination other than FLEX from the state board which issued the or-iginal license by written examination; or (4) National Board of Osteopathic Examiners, aU parts taken after January J^ 1990. (b) Graduates of medical schools not approved by LC.ME or AOA must supply certification of passing scores on one of the following written examinations: (1) FLEX - under forie J^Ui Rule .0314 of tliis Section; aft4 or (2) Written examination other than' FLEX from the state board which issued the ap-plicant's original license by written exam-ination together with American Specialty Board certification. (c) A physician who has a valid and unre-stricted license to practice medicine in another state, based on a written examination testing general medical knowledge, and who within the past five years has become, and is at the time of application, certified or recertified by an /Vmeri-can Specialty Board, is eligible for license by endorsement. (d) Applicants for license by endorsement of credentials with l" I EX scores that do not meet the requirements of Rule .0314 of this Section must meet the requirements of Paragraph (c) of this Rule. Statutory Authority G.S. 90-/0; 90-/3. .0314 PASSING FLEX SCORE Physicians who have boon liconsod i» another fitato »» y«» basis ef a taken the FLEX exam-ination may be eligible to apply for a license by endorsement of credentials if they meet the fol-lowing score requirements: (1) FLEX taken before January I, 1983 - A FLEX weighted average of 75 or more on a single three day examination is required. (2) FLEX taken after January I, 1983 - A FLEX weighted average of 75 or more on a single three day examination, with a score not less than 70 on Day 1, a score not less than 75 on Day 11, and a score not less than 75 on Day III, is required. (3) FLEX taken after January 1, 1985: (a) A score of at least 75 on FLEX Compo-nent I and a score of at least 75 on FLEX Component II is required. (b) Components may be taken in tandem. Any component that is failed may be re- 6:14 NORTH CAROLINA REGISTER October 15, 1991 9.U PROPOSED RULES (c) taken; however, Component II may not be taken alone unless the applicant has passed Component I within the last se\'en years. Both components must be passed within seven years of the date of taking the initial examination. Statutory Authority G.S. 90-6; 90-/0: 90-/3. .0315 TEN YEAR QUALIFICATION (a) To be eligible for license by endorsement of credentials, an applicant who has not met one of the following qualifications within the past ten years of the date of the application to the Board, must take the SPEX, or other examination as determined by the Board, and attain a score of at least 75: (1) National Board of .Medical Examiners certification; (2) FLEX scores as required under Rule .0314 of this Section; (3) SPEX score of at least 75; (4) certification or re-certification from a spe-cialty board recognized by the American Board of Medical Specialties; or (5) complotod completion of formal postgrad-uate medical education as required under Rule .0313 of this Section. (4^ i\Mj\ Phycician's Rocognition Award. (b) The SPEX requirement may be waived upon receipt of a current AMA Physician's Re-cognition Av\3rd. (c) This requirement is in addition to all other requirements for licensure and may be applied as the Board deems appropriate. Statutory Authority G.S. 90-//; 90-/3. 937 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES /\. dopted rules filed by the Department of Revenue are published in this section. This department is not subject to the provisions o/G.S. I50B, Article 2 requiring publication in the N.C. Register of proposed rules. Ejffective October /, 1991, the Departments of Con-ection and Revenue are subject to G.S. ISOB, Article 2A. The rules appearing in this section were filled prior to October 1 , 1991 and are not subject to the notice requirements. LJpon request firom the adopting agency, the text ofi rules will be published in this section. TITLE 5 DEPARTMENT OF CORRECTION CHAPTER 2 - DIVISION OF PRISONS SUBCHAPTER 2A - ORGANIZATION AND PERSONAL CONDUCT (REPEALED) SECTION .0100 - ORGANIZATION OF THE DIVISION OF PRISONS .0101 GENERAL .0102 SECTION CHIEFS \MTH SPECIFIC MANAGEMENT FLECTIONS .0103 SECTION CHIEFS WTFH AUTHORITY OVER FACILITIES History Note: Statutory Authority G.S. I43B-10; 148-4; 148-11; 148-19; 148-22; Efifi February /, 1976; Repealed Eff November I, 1991. SECTION .0200 - CONDUCT OF EMPLOYEES .0201 GENERAL .0202 CONDITIONS OF EMPLOYMENT History- Note: Statutory Authority G.S. 14S-3; 148-11; 148-23; Efifi February 1, 1976; Amended Efifi July 1, 1987; May 1, 1987; August 1, 1983; Repealed Efifi. November 1 , 1991 . SECTION .0300 - APPEARANCE REGULATIONS .0301 GENERAL .0302 APPEARANCE History Note: Statutorv Authority G.S. 143B-262; 148-11; Efifi November 1, 1976; Repealed Efifi. November 1 , 1991. SECTION .0400 - EMPLOYEE PERFORMANCE APPRAISAL .0401 GENERAL .0402 PROCEDURES Histoiy Note: Statutory .Authority G.S. I43B-261.1; 143B-36I.1; Efifi December 12. 1977; Repealed Efifi. November 1 , 1991 . 6:14 NORTH CAROLINA REGISTER October 15, 1991 938 FINAL RULES SECTION .»>5(M) - CERTIFICATION REQUIREMENTS FOR EDUCATIONAL PERSONNEL .0501 GENERAL .0502 DEFINITIONS AND EMPLOYMENT STANDARDS .0503 PROMSIONAL CERTIFICATION .0504 CERTIFICATION AND CERTIFICATION RENEWAL .0505 FAILURE TO MAINTAES CURRENT CERTIFICATION .0506 CERTIFICATION RENEWAL PROCEDURE .0507 IN-SERMCE TRAFSFSG FOR TEACHERS .05(»8 SALARY SCHEDULES OF CERTIFICATED PERSONNEL .0509 STATEMENT OF JOB DUTIES AND RESPONSIBILITIES .0510 HIRFSC. PROCEDURES History Note: Statutory Authoritv G.S. II5C-II0: II5C-295: II5C-296; II5C-297: Eff. July I, I9S5; Repealed Eff. November I, 1991. SUBCHAPTER 2B INMATE CONDUCT RULES: DISCIPLESE SECTION .0100 - GOOD TIME AND GAIN TIME .0101 PURPOSE (a) The General Statutes authorize the awarding of various sentence reduction credits to selected in-mates. The awarding of such credits ser\'es as an incentive for inmates to be productive and act responsibly. Effective and efticient allocation of good time and gain time awards is a critical element for maintaining order, security, and appropriate management of the inmate population. (b) Tliis policy establishes a method of computing sentence reduction credits in the form of Good Time for satisfactory behavior. Gain Time for participation in work or program assignments, and meritorious time for behavior or specific acts not normally required of an inmate. This policy applies to inmates confined in any facility in the Division of Pnsons of the North Carolina Department of Correction, a jail, a regional confinement facility, a "County Farm", or any other local confinement facility established for the incarceration of con\icted offenders. History Note: Statutoty Authoritv G.S. I4S-II: 148-13; J5A-/340.7; Eff Febniarv I. 1976; Amended Eff November I. 1991; September I, I9S3; February I, 1982; February 23. 1981. .0102 GOOD TIME (a) Award of Good Time. With the exception of those inmates serving sentences as specified in Rules .0106, .0107, and .0108 and those inmates con\icted of Class A and B felonies committed after the Fair Sentencing Act became effective, all inmates shall be awarded good time credits at the rate of one day deducted from the inmate's prison or jail term for each day the inmate spends in custody without a major infraction of prison conduct rules. (b) Forfeiture. Good Time shaJl be subject to forfeiture through disciplinan,^ action for con\'iction of major infractions as the result of violations of prison conduct rules. (c) Restoration of Forfeited Good Time. Good Time forfeited through disciplinary action may be restored by unit superintendents, area administrators, institution heads, and, in the case of inmates confined to local confinement facilities, the sherifi" or administrator of a regional confinement facility. Such restoration shall be based upon documented incidents of improved behavior by the inmate. History Note: Filed as a Femporary Amendment Eff. April I , I9S3 for a Period of 60 Days to Expire on June f J983: Statutory Authority G.S. 148-11; 148-13: ISA- 1 340.7; Eff February I. 1976: Amended Eff November I, 1991: April I, 1985; September I. 1983: June I, 1983. .0103 GAIN IIME 939 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES (a) Regular Gain Time. Inmates other than those convicted of felonies committed after the effective date of the Fair Sentencing Act who perform work, whether full-time or part-time, or participate in specific training programs which would assist their productive re-entry into the community, shall be allowed sentence reduction credits which shall be regulated as Regular Gain Time I, II, and III. Reg-ular Gain Time shall not be subject to forfeiture for misconduct and shall be administered as follows: (1) Regular Gain Time I. In addition to Regular Good Time credits, inmates who perform short-term work assignments and/or who participate in specific training programs requiring a mini-mum of four hours of productive activity per day shall receive credit at the rate of two days per month. (2) Regular Gain Time II. In addition to the Regular Good Time credits, all inmates who satis-factorily perform job assignments and/or who participate acceptably in specific training pro-grams requiring a minimum of six hours per day shall receive credit at the rate of four days per month. (3) Regular Gain Time III. In addition to Regular Good Time credits, all inmates performing as-signed jobs with requirements for special skills or specialized responsibilities such as specialised maintenance, cook, equipment operator, canteen operator, or inmates participating in fulltime specific training programs requiring a minimum of six hours per day shall receive credit at the rate of six days per month. (b) Fair Sentence Gain Time. Inmates convicted of felonies committed on or after the effective date of the Fair Sentencing Act shall be allowed sentence reduction credits which shall be regulated as Fair Sentence Gain Time I, II, and III. The credit received shall be calculated for work performed as listed in Rule .0103(a)(1), (2), and (3). Credit shall be received for participation in study and rehabihtative programs after June 3, 1985, as calculated by using the categories in Rule .0103(a)(1), (2), and (3). (c) Meritorious Time. The Director of the Division of Prisons or the Director's designated repre-sentative may award additional sentence reduction credits to deserving inmates. Such awards shall not exceed 30 days per month for work pertormed nor 30 days for each act of exemplary conduct. Con-sideration for meritorious time awards will be based upon the following categories; (1) Work Performed. (A) Overtime. Overtime is defmed as satisfactory performance in a job and/or program activity beyond a regular forty-hour work week. Inmates assigned to the Work Release Program are not eligible to receive overtime based on a work release job. Fair Sentence inmates are not eli-gible to receive overtime based upon a program assignment. Fair Sentence inmates may receive overtime based on work performed. (B) Adverse Working Conditions. Inmates are eligible for additional sentence reduction credit for work performed during inclement weather. Inclement weather is defmed as a chUl factor of below 20 degrees Fahrenheit or a temperature above 95 degrees Fahrenheit. Such conditions may include rain, sleet, snow, or other unusual or abnormal circumstances as determined by the appropriate approving authonty. (C) Fmergency Conditions. Inmates are eligible for additional sentence reduction credits for work performed during emergency conditions. Facility Superintendents will determine when an emergency condition exists. Such emergency conditions may include power failures, forest fires, work stoppages, riots, state-wide emergencies established by the State Emergency Response network or other similar emergency conditions. (2) Exemplary Conduct. (A) Exemplary Acts. Inmates are eligible for additional sentence reduction credits, not to exceed 30 days for each act, based upon the performance of exemplary acts. Exemplary acts are defmed as unusual deeds or acts performed by an inmate. (B) Exceptional Educational Achievements. Inmates attaining an educational degree are eligible for additional sentence reduction credits at a rate of 30 days per achievement. These awards are limited to successful completion of the General Educational Development Test (GED), receipt of a vocational trades license or trades certification based on successful completion to a formal program of vocational course work and supervised training, the attainment of a Associate of /Vrts or Science Degree (i\A. AS), or the achievement of a Bachelor of /Vrts or Science Degree (BA, BS) or Graduate Degree (MA, MS, Ph.D., etc.). Inmates identified as Exceptional Stu-dents Program participants or other irmnates identified as special students by educational au-thorities may be awarded an additional five days per month for documented positive progress towards established educational goals in keeping with their individual education plans. (3) Prison Population Reduction. Irmiates may be eligible for additional sentence reduction credits for good conduct during prison population reduction pursuant to G.S. 148- 13(b) and (d). 6:14 NORTH CAROLINA REGISTER October 15, 1991 940 FINAL RULES History Sole: Filed as a Femporary Amendment Fff. March 21 , 1987 For a Period of 43 Days to Expire on Slav 1 , 1987; Statutory Authority G'.S. 148-11; 148-13;' I5A-I340.7; Fff. February I, 1976; Amended Fff. Smember 1, 1991: May I. 1987; October I, 1983; September I, 1985. .0104 PROCEDURE (a) Recording Sentence Reduction Credits. ( 1 ) Recording. Ciood lime will he computed automatically on the inmate's record. Gain Time, .Meritorious Time, and Restored Good Time awards must be initiated by the unit superinten-dent or institution head upon the designated reduction credit form and shall be approved as provided in Paragraphs (b) and (c) of this Rule. Transfers automatically terminate Regular and I'air Sentence (jain lime status for inmates in the custody of the Division of Prisons. (2) Accumulation. Meritorious Time awards will be accumulated and recorded on an hour for hour basis including credits accumulated for part-time assignment or for multiple part-time activity participation and submitted in whole days, except such credits may be authorized for an exemplary act at a rate not to exceed 30 days for each act to the appropriate approving authority. A whole day is defined as eight hours. (3) Local Confinement Facilities. In the case of inmates confined to local confinement facilities, pursuant to court commitment, the sheriff or administrator of a local confinement facility shall establish procedures for granting, approving, and documenting sentence reduction credits. In the case of inmates confined to local confinement facilities, pursuant to a contractual agreement with the Department of Correction, the sheriff or administrator shall forward recommendations for granting sentence reduction credits to the Di\isian of Prisons' designated approving authority as listed in .0104(b). The Division of Prisons' approvmg authority will cither approve, modify, or disapprove the award. All Di\ision of Prisons' authoriized credits shall be recorded upon the sentence reduction credit form. (4) Recommendations and Submission. Sentence reduction credits will be submitted only by the unit of pennancnt assignment for inmates in the custody of the Division of Prisons. Rec-ommendations for sentence reduction credits for such inmates housed temporarily at a prison facility other than the regular unit of permanent assignment will be forwarded to the unit of permanent assignment for approval and recording documentation. (b) /Vppro\ing Authorities. Sentence reduction credit awards are subject to approval as foUows: (1) Unit superintendents shall have authority to approve Gain Time awards and to approve Meri-torious Time awards and to make lost good time restoration awards not to exceed 10 days per month per inmate. (2) Institution heads shall have authority to approve Gain Time awards and to approve Meritorious lime awards and to make lost good time restoration awards not to exceed 30 days per month per inmate. (3) Area administrators shaU have authority to approve Meritorious Time awards and to make lost good time restoration awards not to exceed 30 days per month per inmate. (4) ,AU .Meritorious Time awards and restoration of lost good time awcirds which exceed 30 days in a month must be approved by the Director of the Division of Pnsons. llisioty Sote: Statutory Authority G.S. 13A- J 340.7; 148-11; 148-13; Fff February 1. 1982; Amended Fff Sovember 1. 1991; August I. 1986: September 1, 1983. SECTION .0200 - DISCIPLINARY PROCEDURES .0201 GENERAL (a) Initial. vVny member of the state correction service or other authorized person who witnesses what appears to be an act of misconduct by an Lnmate should take appropriate action to pre\ent con-tinuation of any actual misbehavior by that inmate. Counseling may be suilicient and should be tried when no additional action appears necessary to stop the misbehavior and prevent a recurrence. As-sistance should be obtained from other persormel when needed to enforce discipline with minimum risk 941 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES to persons or property. The inmate may be placed in administrative segregation when this action ap-pears to be necessary to control that inmate or to prevent further disorder. (b) Reports. When an observer of apparent misconduct by an inmate concludes that counseling wLU not be sufficient action because the suspected offender does not appear responsive or because of the seriousness of the suspected offense or when an inmate observes serious misconduct, the observer should report the matter to the officer designated by the superintendent to investigate offenses com-mitted. (c) Investigations (1) The designated officer should begin his investigation as soon as possible, and in any event within 24 hours after being notified of a suspected offense, unless criminal prosecution is contemplated, in which case the criminal investigators should initiate their investigation before the investigation for disciplinary procedures begins. He should discuss the matter with the person reporting the incident and with the inmate or inmates accused. Where necessary to ascertain the true facts, he should interview other witnesses, make searches, and employ other appropriate investigatory techniques. (2) When the investigating officer is satisfied he has learned the relevant facts, he may dismiss the charges if he concludes that the facts do not justify further proceedings. In that event, he should explain his action to the person reporting the suspected offense and also to the inmate accused. (3) If the investigating officer concludes that the facts found do justify further proceedings, he should obtain written and signed statements from the p>erson reporting the suspected offense, from the suspected offender, and from the other persons providing pertinent information. (4) The accused inmate should be advised by the investigating officer that: (A) He has the right to submit names of requested defense witnesses and have them caUed to testify provided the calling of witnesses does not jeopardize or threaten institutional or individual security. (B) The number of witnesses vvUl be Limited to avoid useless repetition of the same evidence to be presented at the hearing. Physical evidence will only be preser\'ed upon written request of the inmate and provided that retaining or presenting the evidence does not threaten institutional or an individual's security. (5) The investigating officer should take written statements from aU witnesses. If statements are not taken from all witnesses, the investigating officer should record their names with an explanation for not taking their statements. (6) The investigating officer should make written notes of any observations made by him during the course of the investigation which directly relate to the alleged offense, and he should take under his control any physical evidence available. Upon completion of the investigation, this officer should make such changes in the status of the accused as seem warranted by the facts found. (7) The results of the investigation should be presented to the superintendent as soon as possible. If more than 48 hours are required to make the investigation and present the results, authority to extend the time should be obtained in writing from the unit superintendent or institution head who should establish the time period of extension. Before the superintendent grants the exten-sion of time, he should indicate on the DC-138A whether the inmate wiU be placed or continued on administrative segregation and the reasons for this decision. (d) Defmitions. The word "umt" used in this Section is to be understood to refer to any confinement facihty of the Division of Prisons. The term "superintendent" will be interpreted as including the warden at Central Prison. History Sole: Statutory Authority G.S. I4S-I I ; Eff. February I, 1976; Amended Eff. November I, 1991; December I, 1986; June I, 1984. .0202 DISPOSITION BY SLPERINTENDFAT OR DESIGNEE (a) The superintendent should first determine whether the investigation report indicates that he may dispose of the matter by counseling the inmate or inmates concerned. The investigation report in such cases should be filed at the unit together with a signed statement regarding the superintendent's action. (b) If the superintendent or his designated representative decides formal disciplinary^ action is required, he should fill out an offense report. He should make such changes in the status of the accused as he feels appropriate pending a hearing on the matter. The superintendent, or his designated representative, should indicate on the DC-138A whether the inmate wiU be placed or continued on administrative segregation pending the disciplinar>^ hearing and the reasons for this decision. 6:14 NORTH CAROLINA REGISTER October 15, 1 991 942 FINAL RULES (c) The superintendent or his designated representative should make a preliminan.' determination as to whether the alleged offense should be classified as minor or major. He should be guided in this re-gard by the classification of offenses in 5 NCAC 2B .0300. If he decides that an offense classified as minor in 5 NCAC 2B .0300 should be dealt with as a major offense in a given case, he should state in writing the matters in aggravation that he deems to justify such handling; if he decides that an otTense classified as major in 5 NCAC 2B .0300 should be dealt with as a minor offense, he should state in writing the matter in mitigation that he deems to justify this decision. He should sign this statement and include it in the case records. (d) When the superintendent or his designated representative decides that an accused is to be dealt with by formal discipliniiry action, he should give the accused notice in writing of the charge including a statement of the misconduct alleged and of the rules this conduct is alleged to violate. If the offense charged is classified as minor by the superintendent or his designated representative, he should ask the accused whether he admits guUt. If so, the superintendent or his designated representative, should allow the offender to make a statement. The substance of the statement should be summarized in the record. The superintendent or his designated representative, should then decide on the disposition. He may impose any measure authorized as a disposition for minor offenses, or he may suspend such imposition on condition of good behavior for a stated period of time not to exceed three months. He should note his decision on the offense report. (e) If the accused denies guilt where a minor offense is charged, the superintendent should order the accused to appear before a unit disciplinar,' committee. Where major rnfractions are alleged, the matter will be referred to an area disciplinars' committee. Referrals to a disciplmar\" committee should be made by the superintendent or his designated representative within 48 hours after he receives the investigation report. In any case where this is not possible, the reason for the delay should be explained in uriting by the superintendent or his designated representati\e, and his signed statement respecting this should be made a part of the case record. HistOfT Xote: Statutory Authoritv G.S. I4S-1 1; Eff. Februarv I. 1976; Amended Eff. Xovember I, 1991; June 1, I9S4. .0203 DISCIPLrSARV COMMITIEES (a) Unit Disciplinary Committee (1) The superintendent should appoint one or more disciplinar.' committees from the staff of his unit to hear and determine the disposition of minor offenses charged against inmates assigned to his unit. These committees should be composed of three members chosen so as to pro\ide a balanced and impartial tribunal. No person who initiates the charges to be heard or who is a witness in the case may be a member of the committee to which the case is referred. The superintendent should designate one member to serve as chairman. The appointments and designations should be made subject to the approval of the area administrator. (2) The chairman of a unit disciplinary committee to which a case has been referred should arrange for a hearing on the charge within 48 hours after the referral. The accused should be brought before the committee and confronted with the facts established by investigation reports which tend to support the charge against him. The accused should be permitted to assert a defense or otherwise explain his conduct. The chairman may summon to testify any witnesses or other persons with relevant knowledge of the incident, and may allow the accused to question an\' person so summoned. (3) If guilt is established by substantial evidence, the unit disciplinar} committee ma\' impose one or more measures authorized as a disposition for minor offenses. The committee ma>' suspend such imposition on condition of good behavior for a stated period of time not to exceed three months. Its decision should be noted in the record and certified by the chairman. (b) x\jea Disciplinary Committee (1) Each area administrator should appoint one or more area disciplinan" committees from per-sonnel within his command if a balanced and impartial tribunal can be pro\'ided in this manner. There should be not less than three nor more than five members. When the offense occurred at a unit, no person who initiates the charges to be heard, or who is a witness in the case, or who is on the staff of the unit to which the accused is assigned may be a member of the area disciplinar." committee to which the case is referred. WTien the offense occurred at a major in-stitution, no person who initiates the charges, or who is a witness in the case, or who is in a position of direct supervision over the accused may be a member of the area disciplinar)" com- 943 6:14 \ORTH CAROLL\A REGISTER October 15, 1991 FINAL RULES mittee to which the case is referred. The Director of Prisons should provide that such hearings be held by a disciplinary' committee appointed by the Institution Head or his designated repre-sentative. TTie area administrator institution head should designate one member to serve as a chairman. (2) Cases referred to an area disciplinary committee should be scheduled for a hearing within fourteen days of the referral. The accused should receive not less than 72 hours prior to the hearing, written notice of the charges against him, unless such 72 hour notice be waived in writing by the accused. If a delay for any other reason is desired by the unit superintendent or his designated representative or the accused, the one desiring the delay should state his reason in a written request to the area administrator who may grant such a delay for good cause. (3) The unit superintendent should insure that the investigation report, all written statements and any other pertinent items of information or evidence are properly compiled for presentation to the committee, and that the accused and all needed witnesses are available at the time and place of the hearing. (4) The chairman of the disciplinary' committee should document reasons for declining to call re-quested witnesses and declining to present items of physical evidence on the DC- 138. The fac-tors that the chairman may consider when ruling on an inmate's request to call witnesses or present items of physical evidence should include but not be limited to: (A) Relevance; (B) Cumulative Testimony; (Cj Necessity; and (D) Hazards presented by an individual case. (5) The unit superintendent may appoint a member of his staff to present the case to the area dis-ciplinary committee. The accused may request that a particular member of his unit's staff be appointed to assist him. The unit superintendent should allow this request unless the accused requests one of his accusers or other inappropriate person, in which event the superintendent should appoint another staff member. Yht chosen or appointed representative should assist the accused both in preparing for the hearing and at the hearing. The staff assistant does not serve as an advocate. His role is only to assure that the inmate has an opportunity to present his version of the facts. The representative should document on a DC-138B the way in which he assisted the accused either before or during the hearing. (6) If the chosen or appointed representative has prior knowledge that the accused is gudty, he should inform the accused of that fact so that another staff member may be chosen if desired. Still, an appointed or chosen staff member can and should aid the accused in gathenng and presenting evidence, even though he thinks that the accused is probably guilty. (7) The chairman of the area disciplinary committee should begin the hearing by reading the charges to the accused and asking him whether he admits to committing the offense. If the accused denies guilty, the evidence bearing on this issue should be presented. The accused should be given an opportunity to refute or explain e\idence against him and to present evidence and make a statement in his own behalf. Witnesses presenting rele\ant testimony on his behalf may testify in person or by telephone. WTienever the presentation of live testimony or physical evidence would jeopardize or threaten institutional or individual security, written statements of the facts of the incident gathered by the in\estigatLng officer may be used. Written statements of the ad\erse witnesses, including the accuser, may be used. The inmate should not be permitted to cross-examine witnesses. If the chairman deems it necessary' to withhold the identity of the primary accuser or any other witness due to the threat of reprisal, the accused should be in-formed of the part of testimony or statement of the accused which can be revealed without dis-closing his identity. (S) rVfter all evidence relating to guilt or innocence has been presented, the chairman v\ill ha\e the room cleared of all persons who are not voting members of the committee, except uninvolved people permitted to observe committee deliberations for educational or training purposes. If the committee does not feel that a proper decision can be reached on the basis of the information at its disposal, the chairman may reopen the hearing for additional questiomng, postpone the hearing for one week in an attempt to obtain additional information, or dismiss the charges. (9) Lpon reaching a decision as to the guilt or innocence by majority vote, the chairman should enter the committee's fmdings and rationale on the record and reopen the hearing to advise the inmate of the decision. If he has been found guilty or if he admits guilt when the charges are read, the committee should hear any matter pertinent to the issue of proper disposition and then close the hearing for deliberation on this issue. Upon reaching a decision by majority \'ote as 6:14 NORTH CAROLINA REGISTER October 15, 1991 944 FINAL RULES to the disposition and having noted the reasons for this determination on the record, the chair-man should reopen the hearing to advise the inmate of the decision, inform him of the fact that it will be reviewed, and permit him to have entered on the record any objections he may have to the decision. The chairman should explain to the inmate that if he voices an objection, any punitive aspect of the decision wLU not take effect until the case is reviewed and the punishment is approved by the reviewing authority, while if no objection is made the decision wlU take effect immediately but be subject to being overturned or amended by the reviewing authority. (10) If the accused admits guilt or if he is found guilty of a minor offense by the area disciplinar,' committee, the committee may impose one or more of the measures authorized for minor of-fenses. If he admits guilt or if he is found guilty of a major offense by the area disciplinar}' committee, the committee may impose one or more of the measures authorized for minor of-fenses and in addition or in lieu thereof one or more of the measures authorized for major of-fenses. The committee may suspend such imposition on specified conditions for a stated period of time not to exceed six months. When an inmate is found guilty of possessing funds in a form other than that authorized by Division of Prisons policies or in excess of the authorized amount, the chairman should make a separate ruling that the unauthorized funds should be permanently confiscated and placed in the Weffare Fund. (11) The chairman of the committee should be responsible for insuring that all forms are properly completed. The inmate should be entitled to a copy of a written statement of the evidence relied on by the committee and the reasons for the disciplinarv' action. Certain items of evidence may be excluded if necessar\" to protect a witness or informant from reprisal. When information supplied by confidential informants is relied upon, the chairman should document in the record the reasons why the information provided was trustworthy or that the informant has provided reliable information in the past. Copies of Forms DC- 138 and DC- 138(c) should be forwarded to combined records and placed in the inmate's headquarter jacket. The originals of these forms wiU be placed in the inmate's field jacket. History Xote: Statutory Authoritv G.S. 148-1 1; Eff. February I. 1976; Amended Eff. Sovember I. 1991; December I, 1986; June 1, 1984. .0204 REMEW PROCEDl RES (a) A re\iew of all actions by disciplinary committees should be made by the appointed authorities within seven days of the committee's decision. (b) The review should be directed to the consideration of whether the record indicates that the proper procedures were foUowcd during the course of the in\'estigation and hearing, and whether the inmate received a substantively full and fair hearing. The reviewing authority should not substitute his judge-ment for that of the committee's unless it is necessary to do so in order to correct a prejudicial abuse of procedures or to remedy a clearly erroneous and unfair decision. (c) The reviewing authority is authorized to; (1) approve the committee's decision; (2) order a re-hearing in whole or in part: (3) disapprove the committee's decision and dismiss the case; (4) reduce, but not increase, any punitive aspect of the committee's decision; (5) modify any administrative or treatment decision made by the committee. (dj The reviewing authority wlU enter on the record his reasons for taking any action other than ap-proving the committee's decision. (e) The unit and the inmate concerned should be notified of the reviewing authority's decision with-out delay. (f) The full record of the case wiU be filed at the location of the reviewing authority. (g) The decision of the reviewing authority may be appealed in writing directly to the Director of Prisons or his designee. His decision is not subject to further review. Histoiy Xoie: Statutory^ .Authority G.S. 148-11; Eff February 1, 1976; .4 mended Eff Sovember /, 1991 . .0205 AUTHORIZED DISCIPLINARY PROCEDURES (a) For minor offenses arising out of a single incident, one or more of the following are authorized: 945 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES (1) reprimand; (2) suspension of one or more privileges for a period not to exceed 30 days. No privileges may be suspended which the facility superintendent cannot on his or her own authority grant, such as work release. Privileges which may be suspended include, but are not limited to, access to the movies, telephone, yard privileges, and recreational activities. Visitation privileges may be sus-pended when a disciplinary offense occurred during visitation; (3) extra duties; The total hours of extra duty should not exceed 40 and no more than four hours should be performed on any working day and no more than eight hours on other days. The total period over which the extra duty extends should not exceed 30 days. (b) For major offenses arising out of a single incident one or more of the measures authorized for minor offenses may also be imposed and in addition or in lieu thereof one or more of the following: (1) confinement in disciplinary segregation for a period of 1 to 30 days. If the disciplinary committee imposes a maximum and minimum term of confinement, the Superintendent/Institution Head wUl have the discretion to release the inmate at any time within and including the minimum and maximum term. The irunate will receive day-for-day credit for time spent on administrative segregation pending a disciplinary hearing towards his total period of confinement in disciplinary segregation; (2) loss of up to 30 days time eamed by previous good conduct; (3) loss of any or all minimum custody privileges (work release, study release, home leave, com-munity volunteer leave, and all authorized outside activities) or loss of minimum custody status; Only the area disciplinary committee may make punitive level adjustments. The appropriate review date of level adjustment may be determined by the area classification committee accord-ing to the inmate's behavior foUowing the infraction. If the inmate is to be demoted out of minimum custody, he wUl be referred to an area classification committee for reassignment in accordance with departmental procedures. (c) For each unrelated offense charged on the same hearing day, additional punishment may be im-posed in accordance with these Rules. (d) Inmates who commit infractions on segregation may be confined in disciplinary segregation for additional periods of 1 to 30 days. History Note: Statutory Authority G.S. 148-1 1 ; Eff. February I, 1976; Amended Eff. November 1, 1991; December I, 1990; July I, 1984; June I, 1984. .0206 MODIFICATIONS The Director of the Division of Prisons may authorize modifications of this procedure consistent with its fundamental principles, provided any modification should be in writing, approved by the Secretary of Correction, and incorporated in the policies and procedures of the Department. History Note: Statutory Authority G.S. J48-/ J; Eff February /. 1976; Amended Eff. November I, 1991; June 1, 1984. SUBCH.4PTER 2C - CLASSIFICATION SECTION .0500 - PROMOTION OF FELONS TO MINIMUM CUSTODY .0504 PROCEDURE Each time the unit/institution classification committee formally reviews a case, a recommendation will be made. Form DC-121 wiU be completed and referred to the superintendent for review and approval or disapproval. After the final approving authority has acted on the case (whether approved or disap-proved), proper distribution of all copies will be made (combined records, area records, unit or insti-tution records). History Note: Statutory Authority G.S. 148-4; 148-11; Eff February 1, 1976; Amended Eff November 1 , 1991 . SUBCHAPTER 2D - PUBLIC COMMUTSTCATIONS 6:14 NORTH CAROLINA REGISTER October 15, 1991 946 FINAL RULES SECTION .0300 INMATE USE OF THE .MAILS .0301 GENERAL .0302 CORRESPONDENCE .0303 PROCEDURES FOR CENSORSHIP .0304 PACKAGES AND OTHER ITEMS .0305 MAIL RECORDS History Note: Filed as a Temporary Amendment Eff. February 1 , 1988 For a Period of 30 days to Expire on March 1 , 1988; Statutory Authority G.S. 148-1 1; Eff. February I, 1976; Amended Eff March /, 1988; January 1, 1985; March 1, 1984; February I, 1984; Repealed Eff November I, 1991. .0306 GENERAL (a) Inmates may write to anyone, but an individual inmate's privileges to write to a particular person or persons may be withdrawn by the superintendent warden of the correctional facility to which the inmate is assigned, upon request of the recipient, or if the recipient is a minor, at the request of his or her parents or legal guardian. Writing privileges also may be terminated for any of the reasons stated in Rule .0307(e) of this Section. The reason for withdrawal must be stated in a written notice to the inmate that should refer specifically to the letters previously returned. (b) It is the purpose of the mail policy to protect citizens in the community from offensive or threatening letters and prevent criminal activities and escape plots from developing through corre-spondence. To accomplish this, it is the responsibility of each facility mail room to stamp the outside of each piece of outgoing inmate mail (including packages) with the name of the correctional facility, (e.\., Mailed from Columbus Correctional Center). The stamp should be affixed to the front of the envelope above the address and between the return address and the postage stamp. This is not required at community residential facilities, i.e., Wilmington Residential Facility for Women. (c) The superintendent warden will be responsible for developing and implementing facility mail procedures consistent with this policy. The facility procedures must be reviewed annually to assure compliance with current Division of Prisons policy. History Note: Statutory' Authority G.S. I48-I I; Eff November 1, 1991. .0307 CORRESPONDENCE (a) Legal Mail. (1) Definition: Mail to or from attorneys, state and federal courts, the judiciary, the Industrial Commission, or legal aid services and Para-legals. (2) Legal mail from inmates shaU not be opened for inspection or impeded in its transmission. If there is any question as to whether an addressee is one of these persons, the mail can be held for not more than 24 hours to resolve the question. (3) Postage for legal mail from inmates will be paid from the Operating Fund provided the inmate is indigent. No other eligibility requirements apply to postage for legal mail. The 10 letter limitation on personal mail does not apply to legal mail. (b) Department of Correction Officials. (1) Definition: The Secretary of Correction, the Director of Prisons, any member of the Grievance Resolution Board or its staff, any member of the Board of Correction, the Parole Commission or its staff, or any official of the Department of Correction in the chain of command above the superintendent, warden to which the inmate is assigned, are defined as DOC officials. (2) Mail to DOC ofticials wiU be accepted within our system without postage. (3) Mail to DOC officials shall not be opened for inspection or impeded in its transmission. If there is any question as to whether an addressee is one of these persons, the mail can be held for not more than 24 hours to resolve the question. (c) Other Go\emmcnt Officials. (1) Definition: Any member of the Congress of the United States or any member of the General Assembly of North Carolina; the President of the United States or the Governor of North 947 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES Carolina; the Attorney General of the United States or the Attorney General of North Carolina; the Director or any agent of the Federal Bureau of Investigation are defined as other government officials. (2) Mail to other government officials will be considered as personal mail for the purpose of postage. (3) Mail to other government officials shall not be opened for inspection or impeded in its trans-mission. If there is any question as to whether an addressee is one of these persons, the mail can be held for not more than 24 hours to resolve the question. (d) Personal Mail. (1) Definition: Any mail to or from an inmate that is not defmed in Paragraphs (a), (b), or (c) of this Rule. (2) Postage for personal mail from inmates without funds will be paid from the Operating Fund provided the inmate is indigent. (3) Postage for personal mail from indigent inmates shall be limited to the cost of 10 first-class one ounce letters per month per indigent inmate. (e) Other Outgoing Mail. Personal mail from inmates may be sealed when placed in the outgoing mail and shall not be opened and censored unless the superintendent/warden or his designee has good cause to beUeve that: ( 1 ) The mail contains threats of physical harm against any person or threats of criminal activity. (2) The mail threatens blackmail or extortion. (3) The mail concerns sending contraband in and out of the correctional facility. (4) The mail concerns plans to escape. (5) The mail concems plans to violate departmental rules and policies necessary to maintain security and control. (6) The mail concems plans for criminal activity or violation of state or federal laws. (7) Tlie mail concems information which if communicated would create a clear and present danger of violence and physical harm. (f) Incoming Mad. (1) Inspection: The superintendent/warden shall provide for the inspection of all incoming mail by qualified members of the correctional facility. The inspection shall serve to prevent inmates from receiving through the mail contraband or any other material that threatens to undermine the security and order of the facility or which cannot be lawfully sent through the mail. Mail to inmates which appears to be from one of the persons Usted in Paragraphs (a), (b), or (c) of this Rule, shall be opened by correctional staff, who shall see that the contents are free of contraband and are in fact official or legal correspondence from the person whose name and return address appears on the outside of the envelope or package. The correspondence shall not be read beyond what is necessary to make this determination. (2) Censorship: Incoming personal mail may be opened and read by the superintendent/warden or his designee only if he has reason to believe that the contents of the letter fall into one of the categories listed in Paragraph (e) of this Rule. This Paragraph and Paragraph (e) of this Rule allow for inspection and censorship of mail only when necessary to protect the security of the facility and prevent criminal activity. No letter is to be opened or censored in order to eliminate critical opinions of Departmental policy or the Department's employees. All incoming personal mail is to be inspected but not read unless it falls in one of the categories listed in Paragraph (e) of this Rule. Under normal circumstances, incoming mad should not be read. (g) Mass MaiUng. Any massive attempt to use the mails to reach the inmate population or facility is inherently suspect. If the superintendent/warden has good cause to believe that such an attempt has been initiated in order to cause dismption or otherwise threaten the order and security of the facihty, the mail involved will be censored. If necessary, due to the security consideration stated in this Para-graph, the superintendent/warden may refuse delivery of this mail without notice to the inmate ad-dressee. (h) Rules on Letter Content and Stmcture. (1) Letters to and from inmates must be written in English unless an exception to this requirement is made by the superintendent /warden. (2) Letters may be typewritten, printed, or written legibly in longhand. (3) Letters to inmates should be addressed so that the full name of the inmate appears on the en-velope. The inmate shall instruct his correspondents to use the correct address as posted on the inmate's buUetin board. (4) Letters from inmates must have their fuU name and return address of the facility in the upper left comer of the envelope. 6:14 NORTH CAROLINA REGISTER October 15, 1991 948 FINAL RULES History Note: Statutory Authority G.S. 148-1 1; Eff. November I, 1991. .0308 PROCEDURES FOR CENSORSHIP If the superintendent/warden or designee decides that an inmate should be prohibited from sending or receiving any personal mail, the inmate should be notified in writing within 24 hours of the reason for censorship. The inmate shall be afforded the opportunity to appeal the decision in writing, within seven days, directly to the Director of the Di%'ision of Prisons. 7 he Director of Prisons or designee shall have the authority to reverse the prior decision if it is believed there is insufficient cause for the prohi-bition. The Director must take action on the appeal in seven days from the time the inmate's appeal is received. History Note: Statutory' Authority G.S. I4S-I I; Eff. November I, 1991. .0309 P.ACKAGES AND OTHER ITEMS (a) Sent by Inmates. Packages and large envelopes addressed to persons other than one of those listed in Rule .0307(a), (b), or (c) of this Section, may not be sealed for mailing by an inmate until inspected by a correctional officer and found free of contraband or material which constitutes a threat to the order and security of the facihty or which cannot be lawfully sent through the maU. This inspection shall be done in the presence of the inmate. If cleared for mailing, the item shall be sealed and placed in the mail by the sender in the presence of the inspector. (b) Sent to Inmates. Additional items sent to inmates shall be subject to inspection and handling by a correctional officer. The inspection shall be done in a secure location in the facility and shall not be done in the presence of the inmate. If the officer determines that the package or envelope contains contraband or other material that threatens the order and security of the facility, this material shall be confiscated. (c) Additional Items Sent to Inmates. In addition to letters, the following items may be received by an inmate through the mail, and are always subject to inspection and handling as provided in these Regulations: ( 1) clothing approved for use while incarcerated; (2) clothing to be used upon release (if received within 15 days of a scheduled release date); (3) musical instruments (when approval is secured in advance from the superintendent/warden); (4) unframed photographs, not to exceed 8" x 10"; (5) legal papers; (6) publications which may be received under 5 NCAC 2D .0100; (7) religious items; (8) money shall be sent by postal or bank money order or cashiers or certified checks. Cash sent by mail shall be returned to the sender with an explanation of the requirements for money orders and/or certified checks. Cash that is concealed or hidden within other mailed items in an at-tempt to avoid detection shall prompt an investigation and appropriate disciplinary action. Such cash will be confiscated if the inmate is found guilty of a disciplinary offense. Otherwise, it will be returned to the sender. If no return address is provided, cash received will be confiscated as contraband and deposited in the Inmate Welfare Fund. (d) Inmate Request for Other Items. Any inmate may request in writing permission from the Command Manager to receive through the mail a specific item that is not otherwise authorized. This request shall be forwarded through the chain of command to permit the views of area staff to be ex-pressed. Seasonal exceptions may be authorized by the Director of Prisons in addition to the List of items an inmate may receive through the mail. (c) COD Packages Sent to Inmates. No COD packages shall be accepted for any inmate and no inmate shall be authorized to send mail COD. Unauthorized items arriving by mail shall be returned to the sender at the expense of the inmate addressed. If the inmate is without funds, the package shall be returned at the state's expense or the inmate may donate it to a charitable organization or request it to be destroyed. A copy of the mail regulations shall be enclosed in the package to be returned. Packages that postal authorities will not accept for return to the sender shall be delivered to some charitable organization, or to a law enforcement agency in appropriate cases, and a receipt shaO be obtained for the same. 949 6:14 NORTH CAROLINA REGISTER October 15, 1 991 FINAL RULES History Note: Statutory Authority G.S. 148-11; Eff. November 1. 1991. .0310 MAIL RECORDS The mail officer shall keep a record on Form DC-218 showing the source and destination of all legal mail, packages and items of monetary value mailed by an inmate. Check and money order numbers shall also be recorded on Form DC-218. The mail officer opening packages and items of monetary value mailed by or to an inmate shall sign his name at the beginning of each day's entries and place his initials beside each entry. Tlie mail officer distributing such mail to inmates shall sign his name at the beginning of each day's entries and place his initials beside the signature of each inmate receiving such mail. History Note: Statutory Authority G.S. 148-1 1; Eff. November 1, 1991. SUBCHAPTER 2E - TREATMENT SECTION .0200 - HEALTH CARE POLICY .0202 FACILITY RESPONSIBILITY .0203 STAFF RESPONSIBILITY .0204 CLFSTCAL RESPONSIBILITY Histon' Note: Statutory Authority G.S. 148-1 1; 148-19; Eff February 1, 1976; Amended Eff. September 23, 1980; Repealed Eff. November 1 , 1991. .0205 MEETESGS AND REPORTS .0206 ANN-UAL RE\ lEW .0207 SKILLED NURSESG FACILITIES .0208 FACILITIES: EQUIPMENT: AND SUPPLIES .0209 FIRST AID KITS History Note: Statutory Authority G.S. 148-1 1; 148-19; Eff September 231 1980; Amended Eff. February 1 , 1983; Repealed Eff November 1, 1991. .0211 EMERGENCY SERVICES .0212 SPECIALTY CARE .0213 MENTAL HEALTH .0214 PROFESSIONAL LICENSURE .0215 NURSrSG SERVICES .0216 TRAESrSG OF HEALTH CARE STAFF .0217 TRAFSTNG OF CORRECTIONAL STAFF .0218 STANDCSG ORDERS AND PROTOCOLS .0219 USE OF STUDENTS AND INTERNS .0220 USE OF INMATES ES HEALTH CARE History Note: Statutory Authority G.S. 148-11; 148-19; Eff September 23, 1980; Amended Eff March 31, 1981; December 15. 1980; Repealed Eff. November 1, 1991. .0222 ESTAKE PHYSICAL EXAMINATION History Note: Statutory Authority G.S. 148-11; 148-19; Eff September 23. 1980; 6:14 NORTH CAROLINA REGISTER October 15, 1991 950 FINAL RULES Repealed Eff. Nmember I. 1991. .0224 MENTALLY DISTURBED INMATES .0225 CONTINl ITV OE CARE History Sole: Statutory Authority G.S. 148-11; 148-19; Eff. September 23, 19S0; Repealed Eff. November 1, 1991. .0230 SPECIAL HEALTH PROBLEMS .0231 DETOXIEICATION .0232 PROSTHETICS .0233 TRANSEERS EOR TREATMENT History Note: Statutory Authority G.S. 148-11; 148-19; Eff September 23. 1980; Repealed Eff November 1, 1991. .0236 rSEORMED CONSENT .0237 NO riEICATION ES CASE OE ILLNESS: INJURY OR DEATH .0238 PROCEDURES IN CASE OE DEATH .0239 PHARMACEUTICALS .0240 HEALTH RECORDS History Note: Statutory .Authority G.S. 148-11; 148-19; Eff September 23, 1980; Repealed Eff November 1, 1991. SECTION .0700 - WORK RELEASE .0703 WORK RELEASE CONDITIONS The following specific requirements must be met in order to grant work release for each eligibility categop,' listed m Rule .0702: (I) Misdemeanants court ordered for work release. (a) The commitment or court order from the sentencing court should provide: (i) The date work release is to begin; (ii) The prison or local confmement facility to which the offender is to be committed; (iii) A provision that work work release terminates the date the offender loses his job or violates the conditions of the work release program established by the Department of Correction; and (iv) A determination as to whether the earnings of the offender are to be disbursed by the Department of Correction or by the clerk of the sentencing court in the manner that the court in its order directs. (b) A misdemeanant court ordered for work release wiU be housed at the prison facility specified by the court. However, if the facility specified cannot house work release inmates due to over-crowding or other administrative purposes, inmates can be assigned to some other appropriate prison facility. For the purposes of this Rule, "overcrowding" refers to a population count above the designated capacity for the facility. "Administrative purposes" are defmed as man-agement practices which determine the classification, custody, programs and security at each unit. (c) Tiie inmate must not be awaiting trial on felony charges or have any felony detainers pending. (d) The inmate will be in minimum custody level III by the date work release is ordered to begin. (e) A misdemeanant court ordered for work release will be processed as outlined in Rule .0706(a). (fj If court ordered work release is delayed or disapproved, the classification authority will document the reasons for such action on the DC- 121. The inmate should be notified by a letter which shall set forth the reasons for the delav or denial. 951 6:14 NORTH CAROLL\'A REGISTER October 15, 1991 FINAL RULES (g) If an inmate who is court ordered for work release and has suitable employment is disapproved, the Area Administrator/ Institution Head or his designee will notify the sentencing judge by letter noting the reasons for disapproval. (2) Irmiates sentenced to a total sentence length of five years or less who are court recommended for work release and therefore requiring immediate work release placement. (a) The inmate must not be awaiting trial on felony charges or have any felony detainers. (b) The inmate must have suitable employment at the time of commitment in an area where there is a field unit or other facility suitable for housing the inmate. (i) "Suitable employment" shall require that: (A) The employer must pay at least the current minimum wage; (B) The employer must participate in an insurance program, preferably the Worker's Com-pensation Program, which will compensate the inmate for injury by accident arising out of and in the course of employment; (C) The work setting must provide an appropriately supervised environment. Employment by a family member is prohibited. A family member is defmed as father, mother, brother, sister, husband, wife, child, aunt, uncle, grandparents, in-laws, foster parent or other persons who acted in place of parents where such relationship can be verified. (D) Inmates disciplined by a regulatory body established by laws for conduct related to their work will not be placed in the same or similar work without consultation with the regulatory body and prior approval of the Secretary of Correction. (ii) The processing diagnostic center will confirm the job offer. Verbal verification will be fol-lowed up with a letter of confirmation except with a regular work release employer. The proc-essing diagnostic center will notify the proposed unit of housing for work release directly by telephone and win request an investigation of the work release job plan. Information concerning the uimate, the crime, the job plan particulars, Jind the other information as appropriate will be provided. The receiving unit will conduct the job investigation and will provide return notifi-cation to the referring diagnostic center by telephone within three working days. Diagnostic center staff wiU send a notification to the receiving area via a DCI terminal transmission stating a request for an investigation has been made. (iii) If a suitable facility is not within normal commuting distance of the inmate's employment, a contract may be negotiated with the county sheriff for housing the inmate at a local confinement facility. (iv) If suitable employment is not available at the time of the commitment, all other provisions in this Subsection do not apply until such employment is secured. The following procedure shall be followed: (A) The staff of the diagnostic center shall counsel and assist the inmate in his job search. The assistance shall include contacts with prospective employers on behalf of the inmate. (B) If suitable employment is not secured at the completion of the regular diagnostic process, the inmate shall be assigned to an appropriate field unit by the classification authority. The assignment should be made to facilitate the inmate's search for employment. The classifica-tion authority should consider promoting the inmate to minimum custody level III for work release only if otherwise eligible to further facilitate work release development and placement. The following is a suggested priority list of assignment locations. (I) i\n appropriate unit close to the inmate's home: (II) /\n appropriate unit within commuting distance of a promising job market; (III) An appropriate unit which is a reasonable compromise of the above priorities. (C) The program staff of inmate's field unit shall counsel and assist the inmate in his job search. The assistance shall include contacts with prospective employers. While seeking work release employment, the inmate may be given any appropriate duty assignment by the classification authority but the duty assignment shall not impair the inmate's opportunity for work release. When suitable employment is obtained, the inmate shall immediately be processed in ac-cordance with this Subsection. (c) The following custodial and correctional considerations, as defmed in (i) of this Rule, will pre-clude the inmate's participation in the work release program, (i) Even though an inmate is court recommended for work release, the inmate may be denied work release privileges by the classification authority under the following conditions: (A) The inmate has a prior criminal or prison record of escape or assaultive behavior which would normally result in the denial of work release privileges to an irmiate who had not been recommended by the court; 6:14 NORTH CAROLINA REGISTER October 15, 1991 952 FINAL RULES (B) The inmate has committed infractions subsequent to commitment under the sentence re-commending work release which would normally result in the denial of work release privileges to an inmate who had not been recommended by the court; (C) The inmate has a serious health problem, mental or physical, which warrants immediate treatment or obser\'ation on a continuing basis. ITiis problem shall be fully documented on the DC-121R;or (D) The inmate has committed major rule violations during a previous term of confinement during work release participation of sufficient magnitude to give cause for current program disapproval. (ii) If there is reason to beUeve that an inmate is subject to denial of work release privileges, his placement on the work release program may be temporarily delayed by the classification au-thority pending further study of his case and the fmal decision of the classification authority. (iii) If court recommended work release is delayed or disapproved, the classification authority wOl document the reasons for such action on the DC- 121. The inmate should be notified by a letter which shall set forth the reasons for the delay or denial. (iv) If an inmate who is court recommended for work release and has suitable employment is disapproved pursuant to the conditions of Rule .0703(2)(c)(i)(A) through (D), the Area Administrator Institution Head or his designee wiU notify the sentencing judge by letter noting the reasons for disapproval. (d) Subject to the considerations set forth in Rule .0703(2)(c), all inmates with court recommen-dations for work release are immediately to be placed in a minimum custody level III, for the purpose of work release only. The inmate wlU not have any other community privileges unless approved as provided in the existing policy relating to outside activities (5 NCAC 2F .0600). (e) Transfer to the appropriate field unit will be processed by the classification authority. Court ordered, recommended inmates approved for work release shall receive fust priority for housing assignments and transfers. A priority hst shall be estabhshed within each area. Court recom-mended and approved inmates shall receive the top priority based on the length of time in the prison system. TTie remainder of the list shall be composed of other inmates approved for work release in order of length of time since receipt of approval. (f) Inmates with a court recommendation for work release should be processed, transferred and placed on work release within ten working days of admission unless custodial and correctional considerations clearly preclude such an assignment or a work release facility is unavailable in the area of proposed employment. (g) A court recommendation which states work release is recommended or which states immediate work release is recommended wiU be interpreted as requiring immediate work release placement. (3) Inmates sentenced for crimes committed after July I, 1981, who are not court recommended for work release. (a) Inmates ser\'ing sentences totaling five years or less are eligible for immediate work release con-sideration. Those sentenced to greater than five years must be within three years of the maxi-mum release date or parole eligibility date except as approved by the Director of Prisons. (b) The inmate must not be awaiting trial on felony charges or have any felony detainers pending. (c) Suitable employment as defmed in Rule .0703(2)(b)(i) must be available prior to work release placement but approval for the work release program can be granted before an employment plan is developed. (d) If a suitable facility is not within normal commuting distance of the inmate's employment, a contract may be negotiated with the county sheriff for housing the inmate at a local confinement facility. (e) The inmate must be in minimum custody level 111 by the date work release is to begin. (f) 1 he inmate must not have had either an escape within six months or a major infraction within three months of work release approval. (4) Inmates sentenced for crimes committed prior to July 1, 1981, with sentences greater than five years. (a) The iiunate must be within three years of the maximum release date or parole eligibility date, except as approved by the Director of Prisons. (b) The inmate must have approval of the Parole Commission. For those inmates on approved MAPP Agreements with a total sentence length of less than 30 years, the MAPP Agreement represents work release approval by the Parole Commission. (c) The inmate must not be awaiting trial on felony charges or have any felony detainers pending. 953 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES (d) Suitable employment, as defined in Rule .0703(2)(b)(i) will be required for placement and may be required for Parole Commission approval as stated in Rule .0707(f). (e) If a suitable facility is not within normal commuting distance of the inmate's employment, a contract may be negotiated with the county sheriff for housing the inmate in a local confmement facility. (f) The inmate must be in minimum custody level III status on the date he is to begin participating in work release. However, approval for work release may be requested through the Parole Commission prior to attaining minimum custody level III. (g) The inmate must not have had either an escape within six months or a major infraction within three months of work release approval. History Note: Statutory Authority G.S. 148-1 1; 148-33.1; Eff. February I, 1976; Amended Eff. November I. 1991; December I, 1986; April 1, 1986; December 1, 1985. SECTION .1300 - STUDY RELEASE .1304 APPLICATION PROCEDURE .1305 REINSTATEMENT History Note: Statutory Authority G.S. 148-11; 148-13; Eff December 1, 1986; Repealed Eff. November 1 , 1991 . .1307 CHANGE IN EDUCATION PLAN .1308 PLACEMENT ON STUDY RELEASE .1309 REMOVAL FROM OR COMPLETION OF STUDY RELEASE History Note: Statutory Authority G.S. 148-11; 148-13; Eff December 1, 1986; Repealed Eff. November 1, 1991. SECTION .1500 - SAFETY AND HEALTH .1501 PURPOSE .1502 SUPERVISORY AND EMPLOYEE RESPONSIBILITY .1503 CONTRACTCSG AGENCY RESPONSIBILITY History Note: Authority G.S. 95-129.1; 95-130.1; 95-148; 148-11; Executive Order Number 6; Eff October 1, 1989; Amended Eff October 1, 1990; Repealed Eff November 1. 1991. SUBCHAPTER 2F - CUSTODY AND SECURITY SECTION .0100 - SEARCH AND SEIZURE .0101 GENERAL (a) In the searching of iimiates, all correctional officers and staff are required to act reasonably and professionally and within reason, employ a "common sense approach". Every effort should be made to assure that inmates are not unnecessarily embarrassed or humiliated. (b) The superintendent/warden will be responsible for developing and implementing a facility search and seizure procedure consistent with this policy. Facility procedures must be reviewed armually to assure compliance with the current policy of the Division of Prisons. (c) To control contraband, searches of inmates are authorized at the discretion of staff. Refusal to submit to a search may result in a forced search and disciplinary action against the inmate. History Note: Statutory Authority G.S. 14S-4; 148-11; Eff February 1, 1976; 6:14 NORTH CAROLINA REGISTER October 15, 1991 954 FINAL RULES Amended Eff. November 1 , 1991 . .0102 SEARCH History Sole: Statutory Authority G.S. 14-258.1; I5A-404; 148-4; 148-11; Eff. February I, 1976; Amended Eff. January 1, 1986; March I. 1985; Repealed Eff S'ovember 1 , 1991 . .0103 SEARCHES OE IN>EATES (a) Complete Searches. A complete search shall include a strip search (the removal of all of the in-mate's clothing), a search of the inmate's effects, and a visual search of the inmate's body cavities to look for contraband. The following rules apply to complete searches: (1) Posts that routinely involve complete searches should be staffed by correctional officers of the same sex as the inmates under their super-'ision. Under normal operations, complete searches of inmates should be conducted by trained staff of the same sex as the inmate. During an emergency operation, the commander may order complete searches of inmates by Criminal Justice Certified staff regardless of sex. (2) The receiving facility will conduct a complete search on ail inmates upon commitment to the Department of Correction, on return from escap>e or court, upon transfer from another facility, or placement on segregation (disciplman,', administrative, maximum custody, etc.). (3) .All inmates entering or leaving maximum, close or medium security facilities will be completely searched. (4j Inmates classified as maximum custody wiU be completely searched before and after visiting. General population inmates in close or medium custody wiQ be completely searched after visit-ing. (5) Minimum custody inmates assigned to facilities other than minimum security facilities will be completely searched after visiting. (6) Upon the discretion of the Superintendent or Officer-In-Charge and as indicated in the unit's Standard Operating Procedures, all or a random selection of minimum custody inmates wiU be searched daily upon the return from community based program activities. Such acti\ities in-clude but are not limited to Work Release. Study Release, Home Leave, Community Volunteer Lea\e, and Outside Work xA-Ssignments, etc. (b) Routine Searches. Routine searches are pat and frisk searches with the person clothed. A routine search may also include searches of personal effects. The following rules apply to routine searches: (1) Correctional staff of either sex may conduct routine searches of male and female inmates. (2) WTiere complete searches are not required, routine searches of minimum custody inmates shall be conducted upon the inmates leaving and returning to the facility for authorized outside ac-tivities. (3) Where complete searches are not required before or after visiting, routine searches shall be con-ducted. (c) Body Cavity Searches. Body cavity searches are the probing of body orifices in search of contraband. These searches are authorized by the supcnntendent 'warden or his her designee when there is probably cause to believe an inmate has concealed contraband in a body orifice. Body cavity searches are authorized only if a complete search has not produced the suspected concealed contraband. Body cavity searches shall be done by medical personnel of the Division of Prisons in a medical setting pursuant to procedures in the Health Care Procedures Manual. If medical personnel of the Di\ision of Prisons are not a\ailable, the procedure may be done by outside medical providers. An Incident Report (DC-432) must be completed to document a body cavity search. (d) Searches of Inmate's Quarters and Effects. Complete shakedown searches of inmate quarters and effects are authorized, regardless of whether there is reason to suspect any particular inmate of concealment of contraband. Searches of inmate quarters and effects are to be conducted randomly daily. Staff conducting the search should a\'oid any urmecessaPv' scattering, disruption, or disarray of the inmate's personal possessions during the search. Inmate's living quarters may be searched without the mmate being present. Normally, inmates will be present when their locker is searched. Histon- Sote: Statutory Authority G.S. 14-258.1; I5A-404; 148-4; 148-11; Eff November 1, 1991. 955 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES .0104 SEARCHES OF VISITORS AND OTHER PERSONS (a) Before and after every visiting period within the confines of a facility, a search of the room or area where the visits are held wlU be made to assure that no contraband has been concealed in or under any structure, equipment or furniture. (b) All visitors and all other persons who seek entry to any facility for any purpose may be subjected to a routine search of their person or their effects upon entering or leaving a facility or any time they are within the confmes of a facility. Such searches are authorized at the discretion of the Officer-In- Charge. Appropriate documentation shall be made to the Superintendent. (c) A routine search may also include the search of personal effects. Personal effects such as handbags, boxes, briefcases, or other items under the immediate control or access of the visitor, should remain outside the confmes of the facihty. When in the judgment of the Officer-In-Charge that it is necessary for any of these personal effects to be carried within the Institution, such personal effects will be subject to a thorough search. Visitors who refuse to agree to a search of personal effects will not be authorized to visit. (d) Routine searches of visitors and other persons see
Object Description
Description
Title | North Carolina register |
Date | 1991-10-15 |
Description | Vol. 6, issue 14 (October 15, 1991) |
Publisher | Raleigh, N.C. : Office of Administrative Hearings |
Digital Characteristics-A | 66 p.; 4.34 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister19911015.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text | j^PfN^Av^"-// y^i./(^^1j ^ I -i^, 'Av nMi s The NORTH CAROLINA REGISTER H JTITU TION IN THIS ISSUE EXECUTIVE ORDERS ADMINISTRATIVE ORDER FINAL DECISION LETTERS PROPOSED RULES Administration Certified Public Accountant Cultural Resources Human Resources Insurance Medical Examiners FINAL RULES RECPtVED Correction NOV 1 1991 Revenue C/IW LIbKARY RRC OBJECTIONS RULES INVALIDATED BY JUDICIAL DECISION ISSUE DATE: OCTOBER 15, 1991 Volume 6 • Issue 14 • Pages 924-980 INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE NORTH CAROLINA REGISTER The North Carolina Register is published bi-monthly and contains information relating to agency, executive, legislative and judicial actions required by or affecting Chapter 150B of the General Statutes. All proposed, ad-ministrative rules and amendments filed under Chapter 150B 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 pro- \'ided free of charge to each county in the state and to \arious state officials and institutions. The North CaroHna Register is available by yearly subscription at a cost of one hundred and five dollars ($105.00) for 24 issues. Requests for subscriptions to the North Carolina Register should be directed to the Office of Ad-ministrative Hearings, P. 0. Drawer 27447, Raleigh, N. C. 27611-7447, Attn: Subscriptions. ADOPTION, AMENDMENT, AND REPEAL OF RULES An 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; a statement of how public comments may be submitted to the agency either at the hearing or otherwise; the text of the proposed rule or amendment; a reference to the Statutory Authority for the action and the proposed effective date. The Director of the Office of Administrative Hearings has authority to publish a summary, rather than the full text, of any amendment which is considered to be too lengthy. In such case, the full text of the rule con-taining the proposed amendment will be available for public inspection at the Rules Division of the Office of Administrative Hearings and at the office of the pro-mulgating agency. Unless a specific statute provides otherwise, at least 30 days must elapse following publication of the pro-posal in the North Carolina Register heiore the agency may conduct the required public hearing and take ac-tion on the proposed adoption, amendment or repeal. When final action is taken, the promulgating agency must file any adopted or amended rule for approval by the Administrative Rules Review Commission. Upon ap-proval of ARRC, the adopted or amended rule must be filed with the Office of Administrative Hearings. If it differs substantially from the proposed form published as part of the public notice, upon request by the agen-cy, the adopted version will again be published in the North Carolina Register. A rule, or amended rule cannot become effective earlier than the first day of the second calendar month after the adoption is filed with the Office of Ad-ministrative Hearings for publication in the NCAC. Proposed action on rules may be withdrawn by the promulgating agency at any time before final action is taken by the agency. TEMPORARY RULES Under certain conditions of an emergency nature, some agencies may issue temporary' rules. A temporary rule becomes effective when adopted and remains in effect for the period specified in the rule or 180 day: whichever is less. An agency adopting a temporary rul must begin normal rule-making procedures on the pe manent rule at the same time the temporary rule adopted. NORTH CAROLINA ADMINISTRATIVE CODE The North Carolina Administrative Code (NCAC) a compilation and index of the administrative rules ( 25 state agencies and 38 occupational licensing board The NCAC comprises approximately 15,000 letter siz single spaced pages of material of which approximat ly 35% is changed annuallv. Compilation and public tion of the NCAC is mandated by G.S. 150B-63(b). The Code is divided into Titles and Chapters. Eac state agency is assigned a separate title which is fu ther broken down by chapters. Title 21 is designate for occupational licensing boards. The NCAC is available in two formats. (1) Single pages may be obtained at a minimu cost of two dollars and 50 cents ($2.50) for pages or less, plus fifteen cents ($0.15) per eac additional page. (2) The full publication consists of 53 volume totaling in excess of 15,000 pages. It is su plemented monthly with replacement pages, one year subscription to the full publication i eluding supplements can be purchased f( seven hundred and fifty dollars ($750.00). I dividual volumes may also be purchased wi supplement service. Renewal subscriptions f supplements to the initial publication availab Requests for pages of rules or volumes of the NC/ should be directed to the Office of Administrati Hearings. NOTE The foregoing is a generalized statement of the pi cedures to be followed. For specific statutory languaj it is suggested that Articles 2 and 5 of Chapter 150B the General Statutes be examined carefully. CITATION TO THE NORTH CAROLINA REGISTER The North Carolina Register is cited by volume, issi page number and date. 1:1 NCR 101-201, April 1, 19 refers to Volume 1, Issue 1, pages 101 through 201 the North Carolina Register issued on April 1, 198( North Carolina Register. Published bi-monthly by the Office of Administrative Hearings, P.O. Drawer 27447 Raleigh, North Carolina 27611-7447, pursuant to Chapter 150B of the General Statutes. Subscriptions one hundred and five dollars ($105.00) per year. North Carolina Administrative Code. Published in looseleaf notebooks with supplement ser\'ice by the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, North Carolina 27611-7447, pursuant to Chapter 150B of the General Satutes. Subscriptions seven hundred and fifty dollars ($750.00). Individual volumes a\'ailable. NORTH CAROLINA REGISTER Office ofAdministrative Hearings P. O. Drawer 27447 Raleigh, \C 27611-7447 (919) 733 - 2678 Julian Mann III, Director James R. Scarcclla Sr., Deputy Director MoUy Masich, Director APA Services Staff: Ruby Creech, Publications Coordinator Teresa Kilpatrick, Editorial Assistant Jean Shirley, Editorial Assistant ISSUE CONTEXTS I. EXECLTrV E ORDERS Executive Orders 151-152 924 II. AD.MIMSTRATrV E ORDER Administrative Order 926 in. FINAL DECISION LETT ERS Voting Rights Act 927 IV. PROPOSED RULES Administration State I'mployees Combined Campaign 929 Cultural Resources Archives and History 932 Human Resources Medical Assistance 932 Insurance Financial Evaluation Division .933 Licensing Boards Certified Public Accountant Examiners 935 Medical Examiners 935 V. FINAL RULES Correction Division of Prisons 938 Revenue Departmental Rules 968 Intangibles Tax 969 License and Excise Tax 969 VI. RRC OBJECTIONS 971 VII. RULES EVTALIDATED BY JUDICIAL DECISION 976 VIII. CUMULATrV E INDEX 978 NORTH CAROLINA RKGISTKR Publication Schedule (October 1991 - December 1992) Issue Last Dav Last Day Earliest Earliest Last Day + Date for for Date for Date for to Earliest Filing Electronic Public Adoption Submit Effective EiHng Hearing by Agency to RRC Date +*++++++++++*+***4 N+*+*****+*++***++++++++++*+++**+*+**+++*** *+**++ 10.01/91 10/15/91 11/01/91 11/15,91 12 02 91 1216/91 01,02,92 01/15/92 02 03 92 02/14 92 03/02,92 03/16/92 04,01,92 04/15,92 05,01,92 05/15 92 06/01,92 06/15/92 07,'01/92 07,15/92 08,03,92 08 14 92 09,01/92 09/15,92 10 01/92 10 15,92 11 02/92 II 16 92 12,01/92 12/15/92 09 10,91 09/24,91 10/ 1 1/91 10/24,91 11/07,91 II '21/91 12/09,91 12 20 91 01/10,92 01 24 92 02 10 92 02 '24 92 03/1192 03 25 92 04 10,92 04 24 92 05,11,92 05 25/92 06/10,92 06'2492 07 13 92 07 24 92 08' 1 1/92 08/25,92 09/10 92 09,24 92 10 12 92 10/23,92 11 06 92 11/24 92 09/1791 10,01,91 10/18-91 10 31/91 11/14, 91 12/02/91 12/16,91 12 31 91 01/17 92 01 31 92 02/17 92 03 02 92 03/18 92 04 01 92 04 17 92 05 01 92 05.18 92 06 01,92 06,17,92 07 01 92 07 20 92 07 3192 08/18 92 09 01 92 09 17 92 10 0192 10.19 92 10/30 '92 11 13 92 12 01 92 10/31/91 10/30/91 11/16/91 11/30/91 12/17 91 12/31/91 01/17,92 01/30,92 02,' 18 92 02 29 92 03 17 92 03 31 92 04/16/92 04/30 92 05/16 92 05 30 92 06/16.92 06/30 92 07/16/92 07/30 92 08'18 92 08 29 92 09 16 92 09, 30, 92 10 16 92 10 '30 92 11/17/92 12/01/92 12,16/92 12/30,92 10,3191 11/14.91 12/01/91 12/15/91 01/01/92 01 15,92 01/31,92 02,14 92 03 04 92 03 15 92 04 01 92 04 15 92 05 01 92 05 15 92 05 31 92 06 14 92 07 01 92 07 15,92 07 31 92 08 14 92 09 02 92 09 13,92 10 01,92 10 15,92 10 31 92 11 14,92 12,02 92 12 16 92 12 31 92 01 14 93 11,20 91 11,20,91 12 20'9I 1 2/20 '9 1 01/20,92 01/20 '92 02/20,92 02 20 92 03/20 92 03 '20 92 04 20 92 04 20 '92 05/20 '92 05 '20 92 06,20 92 06 20 92 07 20 92 072092 08/20 92 08 20 92 09,'20 92 09/20 92 10 10' II' II 12 20,'92 20 92 20 92 20 92 20,92 12 20 92 01/20/93 01 20 '93 02/01/92 01/01/92 02/01/92 02,01/92 03/01/92 03 01/92 04,01,92 04,01,92 05 01,92 05 01/92 06 01,92 06,0192 07,01/92 07,01/92 08,01.92 08 01 92 09,01 92 09,01,92 10 01/92 10 01 92 11 01 92 II 01,92 12,01/92 12/01,92 oroi'93 01 01 93 02 01,93 02 01 '93 0301/93 03/01/93 * The "Earliest Effecti\'e Date" is computed assuming that the agency follows the publication schedule above, that the Rules Rexiew Commission approves the nde at the next-calendar month meeting after submission, and that RRC delivers the rule to the Codifier of Rules fn-e (5) business days before the 1st of the next calendar month. EXECUTIVE ORDERS EXECL TIVE ORDER NUMBER 151 GOVERNOR'S ADVISORY COMMISSION ON MILITARY AFFAIRS By the authority vested in me as Governor by the Constitution and laws of North Carolina, IT IS ORDERED: Section 1. ESTABLISHMENT The Governor's Advisory Commission on Mil-itary Affairs is hereby re-estabHshed. It shall be comprised of thirty (30) members. Fifteen (15) members are to be appointed by the Governor and serve for terms of two (2) years at the pleas-ure of the Governor. In addition to the fifteen (15) appointed members the following fifteen (15) will be permanent members: The Lieuten-ant Governor of North Carolina; the Chair-persons of the Military Affairs Committees of the North Carolina House of Representatives and the North Carolina Senate; the Secretaries of the Departments of Administration, Transportation, Environment, Health and Natural Resources, Crime Control and Public Safety, and Economic and Community Development; the base commanders of Fort Bragg, Camp Lejeune, Cherry Point and the Elizabeth City Coast Guard Air Station, the Wing Commanders of the 4th Tactical Fighter Wing and the 3 1 7th Tactical Airlift Wing and the Adjutant General of the North Carolina National Guard. The Go\emor shall designate one of the members as Chair-person. Section 2. MEETINGS The Commission shall meet regularly at the call of the Chairperson, the Governor, or the Secre-tary of Crime Control and Public Safety. Section 3. DUTIES The Commission shall have the following du-ties: (a) Provide a forum for the discussion of is-sues concerning major military' installa-tions in the State, active and retired military personnel and their families. (b) Formulate goals and objecti\es which en-hance cooperation and understanding be-tween the military components, the communities, our congressional deleg-ation, the general public, and State, fed-eral, and local governments. (c) Strengthen the State's role in securing de-fense related business for North Carolina businesses and in selling North Carolina products to North Carohna military bases. (d) Collect and study information related to supporting and strengthening the military presence within the State. (e) Review proposed military affairs legis-lation. (f) Advise the Governor on measures and ac-tivities which would support and promote defense installations and military families within the State. Section 4. ADMINISTRATION Support staff for the Commission shall be pro-vided by the Department of Crime Control and Pubhc Safety. Members shall serve without compensation but may receive reimbursement, contingent upon the availability of funds, for travel and subsistence in accordance with N.C.G.S. 138-5, 138-6, and 120-3.1. Section 1 EFFECTIVE DATE AND EXPIRATION The Order shall be effective immediately. Done in the Capital City of Raleigh, North Carolina, this the 1 1th day of September, 1991. EXECUTIVE ORDER NUMBER 152 ESTABLISHING THE PERSIAN GULF WAR MEMORIAL COMMISSION WHEREAS, one-sixth (1/6) of the nearly 500,000 troops ser\'ing in the Persian Gulf War were residents of, or stationed in, North Carolina; and, WHEREAS, a number of these servicemen and servicewomen from North Carolina gave their lives for their country during the Persian Gulf War. THEREFORE, by the authority vested in me by the Constitution and laws of North Carolina, IT IS ORDERED: Section 1. ESTABLISHMENT There is hereby established the Persian Gulf War Memorial Commission. It shall be com-prised of the following: 1. Two members of families who lost relatives in the Persian Gulf to be appointed by the Governor. 2. The base commanders of (a) Fort Bragg, (b) Camp Lejeune, (c) United States Marine Corps Air Station at Cherry Point, (d) Seymour Johnson Air Force Base, (e) Pope rVir Force Base, 6:14 NORTH CAROLINA REGISTER October 15, 1991 924 EXECUTIVE ORDERS (f) The Coast Guard Station at Fort Macon, (g) New River Aix Station, and (h) Elizabeth City Coast Guard Air Station, or theij designees. North Carolina elected bv the the North Carolina 3. One member from the N'eterans Council to be Council. 4. One member from \"eterans .Affairs Commission to be elected by the Commission. 5. The Adjutant General of the North CaroUna National Guard. 6. The Senior Commander of the United States /Vrmy Reser\'e from North Carolina, deployed to the Persian Gulf. 7. The Lt. Governor of North Carolina. 8. The Secretary of the North Carolina De-partment of Administration. 9. The Secretap.' of the North Carolina De-partment of Crime Control and PubHc Safety. 10. The Director of the United States Depart-ment of Veteran .Affairs Regional Office. From among the membership the Governor shaU appornt a Chairperson. The Commission shall meet at the call of the Chairperson. Section 2. PURPOSE The purpose of the Commission is to select a site for construction of a memorial, develop plans for funding, select a design for the memorial, and select a construction firm to construct the me-morial. To this end the Commission shall es-tablish itself as a nonprofit, Chapter 501c(3) corporation for the purpose of receipt of and ex-penditure of donated funds. At the completion of each of the aforementioned the Chairperson shall advise the Go\'emor of the Commission's fmdrngs and results. Section 3. ADMINISTRATION .Administrative support for the Commission shall be provided by the Department of Admin-istration's Division of Veterans .-Affairs. There shall be no per diem paid to members of the Commission; however, necessary tra\'el and subsistence allowance mav be paid in accordance with N.C.G.S. 138-5, 138-6, and 120-3.1. Section 4, EFFECTIVE D.ATE This Order shall be effective immediately. Done in the Capital City of Raleigh, North Carolina, this the 1 1th day of September, 1991. 925 6:14 NORTH CAROLISA REGISTER October 15, 1991 ADMINISTRA TIVE ORDER STATE OF NORTH CAROLCSA Office of Administrative Hearings ORDER Pursuant to G.S. 7A-752, Julian Mann, III, Chief Administrative Law Judge of the Office of Administrative Hearings, hereby duly designates Fred Gilbert Morrison, Jr., to ser\''e in the capacity of Senior Administrative Law Judge with all the rights, duties and privileges as conferred in said Section. Witness may hand and seal this the 1st day of October, 1991. s/Julian Mann, III Chief Administrative Law Judge 6:14 NORTH CAROLINA REGISTER October 15, 1991 926 VOTING RIGHTS ACT FINAL DECISION LETTERS [G.S. I20-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the A ttorney General of the United States in which a final decision is made concerning a "change af-fecting voting" under Section 5 of the Voting Rights Act of J 965 be published in the North Carolina Register. / U.S. Department of Justice Civil Rights Division JRD:LLT:NT:gmh DJ 166-012-3 Voting Section 91-2483 P.O. Box 66128 Washington, D.C. 20035-6128 September 13, 1991 Richard J. Rose, Esq. Poyner & Spruill P. O. Box 353 Rocky Mount, North Carolina 27802 Dear Mr. Rose: This refers to six annexations (Ordmance Nos. 0-89-58, 0-90-17, 0-90-62, 0-90-63, 0-91-1, and 0-91-13); the designation of the annexed areas to election districts; and the delay in the 1991 municipal election to May 1992 for the City of Rocky Mount in Edgecombe and Nash Counties, 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 July 15, 1991. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis-tration of Section 5 (28 C.F.R. 51.41). Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division By: Gerald W. Jones Chief Voting Section 927 6:14 NORTH CAROLINA REGISTER October 15, 1991 VOTING RIGHTS ACT FINAL DECISION LETTERS U.S. Department of Justice Civil Rights Division JRD:LLT:TGL:mjnb DJ 166-012-3 Voting Section 91-2735 P.O. Box 66128 Washington, D.C. 20035-6128 September 18, 1991 DeWitt F. McCarley, Esq. City Attorney P. O. Box 7207 Greenville, North Carolina 27835-7207 Dear Mr. McCarley: This refers to the annexation [Ordinance No. 2327 (1991)] and the designation of the annexation to an election district for the City of Greenville in Pitt County, North Carolina, submitted to the At-torney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on July 25, 1991. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis-tration of Section 5 (28 C.F.R. 51.41). Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division By: Gerald W. Jones Chief, Voting Section 6:14 NORTH CAROLINA REGISTER October 15, 1991 928 PROPOSED RULES TITLE 1 DEPARTMENT OF ADMIMSTRAIION lyotice is hereby given in accordance with G.S. 150B-2I .2 that the Department of Administration intends to amend rule(s) cited as I NCAC 35 .0103. .0202, .0301 - .0303, .0403. 1 he proposed effective date of this action is February I, 1992. 1 he public hearing will be conducted at 10:00 a.m. on November 14, 1991 at Commission Room 5034, Department of Administration, 116 West Jones Street. Raleigh, XC 27603-S003. J\eason for Proposed Action: To amend rules to provide for greater efficiency in the manage-ment of the State's Employees Combined Cam-paign. \^ omment Procedures: .Any interested person may present hisjher comments either in writing prior to or at the hearing or orally at the hearing. Any person may request information, permission to be heard or copies of the proposed regulations by writing or calling David McCoy, Department of Administration, 116 West Jones Street, Raleigh. NC 27603-S003. CHAPTER 35 - STATE EMPLOYEES COMBINED CAMPAIGN SECTION .0100 - PLKPOSE AND ORGANIZATION .0103 ORGANIZATION OF THE CAMPAIGN The Campaign Organization is as follows: (1) Ch;iir. F-ach year the Governor wtU may appoint a State Combined Campaign Di-rector from one of the E.\ecuti\e Cabinet or University Administration agencies. TTie Campaign Director or the Campaign Direc-tor s designee will serve as chair of the Campaign. The responsibilities of the Chair include setting the dates and approving the pubhshed materials for the Combined Cam-paign, contracting for the Statewide Cam-paign Manager, and serving as chair of the S.E.C.C. advisory' committee. (2) Statewide Combined Campaign Ad\isory^ Committee. This ongoing committee serves as a central application point for all charita-ble organizations applying to participate in the S.E.C.C. »«4 . hcill dotL'nninL' 4 t-ht» c*f»- plicant agonciiH' moot tb<* appro'. i.'d cnt e ria \i^4^ m R«4e r0343 ef t4«* Chapter. The Committee recommends overall policy for the Campaign to the Governor, the Cam-paign Director and necessary state agencies and sets the criteria for participation by charitable (organizations. The Committee re\iews the recommendations made by the Statewide Campaign .Manager and accepts or rejects its recommendations. The Com-mittee is composed of ten members ap-pointed by the Campaign Director. .Members of the Committee will initially serve staggered terms of one, two, and three calendar years determined by the Campaign Director. As each member's term expires, the replacement member will serve a three calendar year appointment. (3) Statewide Campaign Manager. Determines if the applicant agencies meet the approved criteria listed in Rule .0202 of this Chapter. Serves as the financial administrator for the Combined Campaign and as such is re-sponsible for receivmg reports from the local Combined Campaigns, for transmitting to each local campaign its share of the state emplovec^ pa\ToU deduction funds, and for preparing an end of campaign report which summarizes all fiscal campaign actnitv m-cludmg local audits. The Statewide (Cam-paign Manager is also responsible for the pnnting and distribution of the pledge form, campaign report fonn, and collection cinel-opes. (4) (4^ Local Campaign Chair. The Governor, if asked by the local charitable organizations accepted in to the Combined Campaign, ¥r4U may appoint a an area representative b+ from either state government or the L'ni\'ersity h* A«» a*ea to serve as the local chair. This person will be responsible for forming a lo-cal advisory committee for soluntocr recruitment of volunteer state employees, approval of local campaign literature, ap-proval, afni the establishment of local goals as needed, and the distnbution of any un-designated funds made available for distrib-ution. f4) Ma'.tLT j\ccount. Sen or. a*^ t+»t» financial admini!. trutor f^f ih* Combined (jampaign. i*ft4 a* such » ro 'jponr.iblo fof roocising »- porta from t4«* local Combined Cximpiugnf. ; fef trunt.mitting te each local campaign ite oharo ef tk# f.tat e employeori payroll 4t»- duction fundo: aftd fof preparing aft eft4 f4~ campaign report which r. unimarij'eL. all fiscal campaign acti'i ity including local lUidit -. . i^ master account i* ake- responsible fe* tl» printing aft4 distribution ei tbe pledge 929 6:14 NORTH CAROLINA REGISTER October 15, 1991 PROPOSED RULES form, campaign R'port form, aft4 coUoction en^'olopos. (5) Local Campaign Manager. Once applica-tions for acceptance into the campaign have been recommended to the Committee by the Statewide Campaign Manager, approved, a list of all accepted organizations will he pre-pared by the Stato>'i'ido Combinod Com paign AdvirfOPr f Committoo Statewide Campaign Manager and distributed to all applicants. The State Campaign Manager will submit to the State Combined Cam-paign Director the name of an agency to serve as the local campaign manager. The Campaign Director will approve or reject the State Campaign .Manager's recommen-dation and has the right to name the Local Campaign .Manager. 44*& oraanizations wiU-decide among thomnQlvoc which agonoy wiji ooPi O a* tfee local campaign manager. Pef Ae purpose &f deciding e«- tlw manager, Ae accepted agencies wiU- be divided iftto three groups, each »f ' ' i hich wiili have e«# vote. ¥be groups vrili h^ (a) Unitod Wayt fb^ National Health: sif^ fe^ Independent i\genoies. The local campaign manager is responsible for the printing and distribution of campaign literature, the collection of pledge reports and en\elopes from the state agency volun-teers, the development of campaign reports, and the forwarding of one copy of each payroll deduction pledge to the Statewide Campaign Manager master account. 4ft ad-dition, aft end of campaign report shall be seft* te tl*e master account for inclusion in the required fiscal reports. Note: A contract between the state and the Statewide Campaign Manager, and the state and local manager, will be executed in order to de-velop an acceptable audit trail. The contract contracts will allow a reasonable charge for cam-paign expenses to be claimed by the Statewide Campaign Manager and the local manager. This amount ><^ h% approved by the state. AU terms and conditions of these contracts are subject to re\iew and approval by the Campaign Director. Statutoty Authority G.S. 1438-10; 143-3.3. SECTION .0200 - ELIGIBLE ORGANIZATIONS .0202 CRITERIA FOR ACCEPTANCE Organizations must meet the following criteria to be accepted as participants in the Combined Campaign: (1) The organization must be licensed to so-licit funds in North CaroUna. (2) Must be directed by an active Board of Directors, which meets regularly and whose members serve without compensation. (3) Have tax exempt status for both the IRS and N.C. tax purposes. (4) Must prepare and make available to the general public an annual financial report, which vs certified by aft independent public accountant, or IRS Form 990. An excep-tion to this requirement is provided for any organisation which has filed its Articles of Incorporation with the Secretary' of State's Office as of March \^ of the preceding year of the current campaign. (5) If fundraising and administrative expenses are in excess of 25 percent of total revenue, must demonstrate to the satisfaction of the SECC that those expenses for this purpose are reasonable under all the circumstances of the case. (6) Must certify that all publicity and promo-tional activities are truthful and non-deceptive. (7) Must agree to the confidentiality of the contributor list, and must promise no unau-thorized use of this list. (8) Must permit no payments of commissions, kickbacks, finders fees, percentages, bonuses, or overrides for fundraising, and permit no paid solicitations of the public. (9) Must have a policy of non-discrimination on the basis of race, color, religion, sex, age, national origin or physical or mental hand-icap for clients of the agency, employees of the agency and members of the governing board. Agencies which have been organized along religious Lines, or which are organized to serve persons of a particular sex or race may be considered for eligibility if a bona fide purpose for organizing along such lines can be shown. (10) Must pro\ide benefits or services within the local community, meaning that employ-ees in the solicitation area or their families should be able to receive services from the agency within a reasonable distance, or re-ceive benefits from voluntary agencies. Ex-amples of services are: (a) research and education in the health and welfare or education fields; (b) family and child care services; (c) protective services for children and adults; (d) services for children and adults in foster care; (e) services related to the management and mamtenance of the home; 6:14 NORTH CAROUNA REGISTER October 15, 1991 930 PROPOSED RULES (f) day care scnices for adults and children; (g) transportation sen.'ices, information refer-ral and counseling sersices; (h) the preparation and deliNcr." of meals; (i) adoption ser\ices; (j I emergency shelter care and relief ser%ices; (k) safety services; (1) neighborhood and community organiza-tion services; (mj recreation services; (n) social adjustment and rehabilitation ser- \ices; (o) health support senices; or (p) a combination of ser\'ices designed to meet the needs of special groups such as the el-derly or handicapped. Ho\ve\'er, an international organization which provides health and welfare services overseas, whose acti\ities do not require a local presence and which meet other eligi-bihty criteria, may be accepted for partic-ipation in the campaign. Statutotj Authority G.S. 143-10: 143-3.3. SECTION .0300 - .\PPI.IC\TION PROCESS .\ND SCHEDLLE .0301 SCHEDLLE Complete applications must be submitted to the State Campaign Committee by March 4- Febru-arv j_5 annually to be Included m the fall cam-p. ugn. Incomplete applications v4ii mav not be considered by the Committee. The Chair wiU forward all application materials to the Statewide Campaigi Manager within three working days after the closin'.: deadline. The Statewide Cam-paign .Manager wiU report to tlie Committee its recommendation on each application within three weeks o\_ the closmg deadline. The Com-mittee shall affirm or reiect the recommendation bv the Statewide Campaign Manager and wiU inform the Statewide Campaign Manager of its decision. tion under 150B-23 within iO 15 davs of notiti-cation dispatch date rocoi'i ing notice of the appeal determination. An appeal wiU not be al-lowed to delay the start of the campaign. Statutory! Authority G.S. 1438-10; 147-62. .0303 FORM AND CONTENT OF .\PPLIC.\TION AH organizations seeking funding must submit an application to the state campaign. The ap-plication must include the State Emplo\ees Combined Campaign Certificate ot^ Compliance. Included in or attached to the Certificate of Compliance must be: (1) A letter from the Board of Directors indi-cating interest. (2) A complete description of services provided, and the ser\ice area of the organization. (3) The most recent audited fmancial statement prepared bv a CPA. An exception to this requirement is provided for anv organization which has tiled its .-Vrticles of Incorporation with the SecretaPv' States Office of (4) (5) (6) (7) March _L of the preceding Near of the current campaign, fof (4*e prt."> iou 'j ; » L'ar. including tbe moot recent audit. A board statement of assurance of non-discrimination. .A description of the origin, purpose and structure of the organization. A list of the current members of the Board, including addresses. A letter certifying compliance with the el-igibility standards listed m Rule .0202 of this Chapter including tax exempt status, licens-mg, and showing the percentage of funds expended in the categories of Program and Service, Management and General (.Admin-istrative) and Fundraising. Statutory Authority G.S. 143B- 10; 143-3.3. SECTION .0400 - GENERAL PRO\ ISIONS Statutory Authority G.S. 143B-10: 143-3.3. .0302 RESPONSE .AH apphcants will be notified bv the Statewide Campaign Manager of the ir accjptanco e* Fe-joction the Committee s decision within 30 days of the closing deadhne. An applicant who is dissatisfied with the determination of its applica-tion may file an appeal to the State .Advisory Committee within 10 da\s of the notification dispatch date. .An apphcant who is dissatisfied w ith the appeal determination of the Committee may commence a contested case by filing a peti- .0403 PA^ ROLL DEDUCTION Payment mav be made bv pavroU deduction, cash, pledge, or personal check. If an employee chooses to use the payroll deduction method of contributing, he she must agree to having the deduction continue for one year with equal amounts being taken from each check (montlily or biweekly depending on the payroU), All de-ductions will start with the January payroll and continue through December. If the emplo\"ee discontinues employment, or actively chooses to discontinue payment, the state will not be re-sponsible for the collection of the unpaid pledge. 9n 6:14 SORTH CAROLINA REGISTER October 15, 1991 PROPOSED RULES No deduction will be made for any period in which the employee's net pay, after all legal and pre\iously authorized deductions, is insufficient to co\er the allotment. No adjustments will be made in subsequent periods to make up for de-ductions missed. Stalnloty Authority G.S. I43B-I0; 143-3.3. TITLE 7 - DKPAR IMENT OF CULTURAL RESOURCES iSotice i.% hereby given in accordance with G.S. 1508- 2 1. 2 that the Cultural Resources!Archives and History intends to adopt rule(s) cited as 7 NCAC4P'.00l6. 1 he proposed effective date of this action is February I, 1992. (3) Materials may not be removed from the offices of the Civil War Roster Branch. Thhe public hearing will be conducted at 10:00 a.m. on November IS, 1991 at Room 305, Ar-clmes and History, State Library Bldg., 109 E. Jones Street, Raleigh. Ixeason for Proposed Action: To provide for public use of research fdes in the Civil War Roster Branch and to implement a fee for photocopies of these research materials. C ommcnt Procedures: Written comments to Dr. Wm. S. Price Jr.. 109 E. Jones Street. Raleigh 27601-2807 by 5:00 p.m., Friday, No-vember 15. 1991. CHAPTER 4 - DIMSION OF ARCIH\ ES AND HISTORY SUBCHAPTER 4P - HISTORICAL PI BI.ICAIIONS SECnON .0016 CI ML WAR ROSTER RESEARCH FILES REGULATIONS Regulations governing public use of the research fdes in the othces of the ('nil War Roster Branch are as follows: ( 1 ) Direct access to the service record materials in the tiles of the (ri\il War Rosier Branch shall be bv appointment only at reasonable limes under the supcr\ision of the head of the Civil War Rosier Branch. (2) Direct access shall be granted i£ in the judgment of the head a[ the Ci\il War Ros-ter Branch, the research to be undertaken cannot be duplicated in the search room of the stale archnes. (4) Photocopies will be made on an ^as you wait" basis if the equipment and an operator are available. The costs of such photocopies shall be the same as those charged by the state archives as contained in Subchapter 4.\1, Section .01 UP, Rule .011)5(8), cM this Chapter. Statutory Authority G.S. 121-6(a); l43B-62{ 1 )a..g. I2I-4(4).(5).(I4): TITLE 10 - DEPARTMENT OF HUM.AN RESOURCES I\ otice is hereby given in accordance with G.S. 150B-21.2 that the Department of Human ResourcesI Division of Medical .4 ssislance intends to amend rule(s) cited as 10 NCAC 26H .0504. 1 he proposed effect'n>e date of this action is Febmary 1, 1992. 1 he public hearing will be conducted at 1:30 p.m. on November 14, 1991 at the North Carolina Division of .Medical Assistance. 19S5 L'mstead Drh'e. Room 297. Raleigh. North Carolina 27603. I\eason for Proposed .Action: The Dhision now has hospital lower le\'el skilled care and interme-diate care payment rates available. Coomment Procedures: Written comments con-cerning this amendment must be submitted by: November 14, 1991, to: Division of .Medical As-sistance, 19S5 Umstead Drive, Raleigh. N.C. 27603, ATTN.: Bill Hottel. 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 26 - MEDICAL ASSISTANCE SLBCHAPTER 2611 REIMBURSEMENT PLANS SECTION .0500 - REIMBl RSEMENT FOR SERMCES .0504 INPATIENI HOSPITAL: INAPPROPRIAIE LE\ EL OF CARE (a) No 44ti* i .tulu agency may grant a maximum ef threo administrative days will be granted to arrange for discharge of a patient to a lower le\'el-of-care. Willi piior approval bv tl» State .Medicaid jNgency. 1 lowever. the hospital may be reimbursed fof day;. » eKCLVi Cj ef y*** three rt4- 6:14 NORTH CAROLL\A REGLSTER October L\ 1 991 932 PROPOSED RULES miniotrati'i L' days at the state-wide average rate for tfee particular Ici ol of caro intermediate nurs-ing care, skilled nursing care or \entilator-depcndcnt nursing care needed in the event a lo'iver lu'i ul ol caro bed in a Medicaid approved health care institution is not available. The hos-pitd must, however, make e\er\- effort to place the recipient in an appropriate institution, ^'ithin i}pte tliroij 4»¥ admini -.tratis e time aUowanco. Prior appro \al bv the State Medicaid agency for the lower lc\el of care is required m accordance with ]n N( AC 26B .11 IPS and K) NCAC 26B .(U14. (b) This policy applies to: (1) acute care hospitals; (2) mental hospitals: (3) speciality hospitals. Authoriiv G.S. 10SA-25(b); 42 C.F.R. 447.253; S.L. !9S5. c. 479, s. 86. TITLE 1 1 - DEPARTMENT OF INSL RANGE l\otice is hereby given in accordance with G.S. 150B-21.2 that the S.C. Department of Insurance intends to adopt ruleisl cited as 11 SC.-iC 1 IC .0130. Thhe proposed effcctix-e date of this action is Fcbruai-v 1. 1992.' 1 nstructions on hmv to demand a public hearing {must be requested in writing within 15 days of notice): Submit in writing, by certified mail, re-turn receipt requested, the request to William K. Hale. Dcpt. of Insurance, P.O. Box 26387, Raleigh. .\.C. 27611. iXeason for Proposed .Action: The nde replaces statutes that were inadvertently repealed she montlis before the effecti\-e date of the statutes that will replace the repealed statutes. Coommenl Procedures: Written comments may be sent to Ray .Martinez, P.O. Box 26387, Raleigh. SC 2~'611. Anyone having questions should call Rav Martinez'at (919) 733-2002, or Ellen Sprenkeiat (919) 733-4529. LLditor's Sote: This Rule was filed as a tempo-rary- rule effecti\-e September 12. 1991 for a period of'ISO day's to expire on .March 10. 1992. CH.\PIKK 11 - UNANCIAL EV.ALL.\TION DIMSION SUBCHAPTER IIC - ANALYSIS AND EXAMIN.\T10NS SECTION .0100 - GENERAL PROVISIONS .0130 CREDrr FOR REINSURANCE (a] As used m this Rule and in G_S. 5S-7-30 and G.S. 58-7-32: ( 1) "Insurance risk" means an uncertaintv re-garding the ultimate amount of anv claim pa\ment (underwnting nsk) or an uncer-tainty regarding the timing of such pa\- ments (timing risk). (2) 'insurer" includes an underwriting mem- 01 Hi her of an insurance exchange. 'LiabUitN" includes all reserves. "Reinsurance" means a transfer of insur-ance nsk from a ceding insurer to an as-suming insurer. (5) "Same standards of soh encv" means, at a minimum, the capital and surplus re-quirements applicable to a domestic insurer transactmg the same lines of irv surance or reinsurance. (b) Credit for reinsurance shall be allowed a domestic ceding insurer as either an asset or a deduction from liability on account of reinsur-ance ceded only when: rhe reinsurance is ceded to an assuming insurer that is hcensed to transact insur-ance or reinsurance or otherwise accred-ited as a reinsurer in this State: or licensed in aX least one state that employs stand-ards regarding credit for reinsurance sub-stantially similar lo_ those applicable under this Paragraph and the assuming insurer conforms to the same standards of solvency that would be required of the insurer if it were hcensed in this State: or (2) The reinsurance is ceded to an assuming insurer that maintains a trust fund in a Inited States bank or trust company for the payment of the \alid claims of its I nited States polic\'holdcrs and ceding insurers and their assigns and successors in interest. To enable the Commissioner to detenninc the sufticiencv of the trust fund, the assuming insurer shall annualh' report to the Commissioner infonnation substantially the same as that required to be reported bv licensed insurers on the National .Association of Insurance Com-missioners annual statement fonn. In the case of a single assuming insurer, the trust shall consist of a trusteed account repres-enting the assuming insurer s liabilities at-tnbutablc to business wntten in the I nited States and. in addition, shall in-clude a trusteed surplus of not than 933 6:14 NORTH CAROLIN.A REGISTER October 15, 1991 PROPOSED RULES twenty milUon dollars ($20.000,000). In the case of a group of individual unincorporated underwriters, the trust shall consist of a trusteed account repres-enting the group's liabilities attributable to business written in the United States and, in addition, shall include a trusteed surplus of not less than one hundred million dollars ($100.000.000); and tjie group shall make available to the Com-missioner an annual certification of the solvency of each underwriter by the group's domiciliary regulator and its inde-pendent public accountants. This trust shall be established in a form approved by the Commissioner in a United States bank or trust company that is a member of the Federal Reserve System. The trust instrument shall provide that contested claims shall be \'alid and enforceable upon the final order of any court of competent jurisdiction in the United States. The trust shall vest legal title to its assets in the trustees of the trust for its l.'nited States (4) policyholders and ceding insurers and their assigns and successors m interest. The trust and the assuming insurer shall be subject to examination as determined by the Commissioner. I he trust de-scribed in this Subparagraph must remain in effect for as long as the assuming insurer has outstanding obligations due under the reinsurance agreements subject to the trust. No later than I-ebruar\' 28 of each year the trustees of the trust shall report to the Commissioner in wnting, set forth the balance of the trust, and list the tRist's investments at the preceding year's end; and shall certify the date of termi-nation of the trust, if so planned, or certify that the trust shall not expire prior to the following December 31; or (3) The reinsurance is ceded to an assuming insurer not meeting the requirements of Subparagraphs (b)( 1) or (b)(2) of this Rule, but only with respect to the insur-ance of risks located in jurisdictions other than the United States where such rein-surance is required by applicable law or regulation of that jurisdiction: and The reinsurance is documented by a pol-icv, certificate, treaty, or other fonn of of his authority to assume reinsurance for and on behalf of the assuming insurer. The evidence shall consist of either an ac-ceptable letter of authority executed by an authorized officer of the assuming insurer or a copy of the actual agency agreement between the underwriting manager or agent and the assuming insurer; and the evidence shall be specific as to the classes of business within the authority and as to the term of the authority. (c) If the assuming insurer is not licensed or accredited to transact insurance or reinsurance in this State, the credit permitted by Subparagraphs (b)(1) and (b)(2) of this Rule shall not be allowed unless the assuming insurer agrees in the reinsur-ance agreements: (1) That in the event of the failure of the as-suming insurer to perform its obligations under the terms of the reinsurance agree-ment, the assuming insurer, at the request of the ceding insurer, will submit to the jurisdiction of any court of competent ju-risdiction in any state of the United States, will comply with all requirements neces-sary to .give that court jurisdiction, and will abide bv the final decision of that court, or of any appellate court in the event of an appeal; and (2) "1 hat the assuming insurer will designate the Commissioner as its true and lawful attorney upon whom may be served any lawful process in any action, suit, or pro-ceeding instituted bv or on behalf of the ceding company. This Paragraph shall not conflict with the obli-gation of parties to a reinsurance agreement to arbitrate their disputes, if such an obligation is created in the agreement. (d) A reduction from liability for reinsurance ceded to an assuming insurer that does not meet the requirements of Paragraphs (a) through (c) of this Rule shall be allowed in an amount that does not exceed the liabilities carried by the ced-ing insurer for funds held bv or on behalf of the cedmg insurer, including funds held in trust for the ceding insurer, under a reinsurance contract with the assuming insurer as security for the payment of obligations under the contract, if that security is held in the United States subject to withdrawal solely by, and under the exclusi\e agreement that is properly executed by an control of the ceding insurer; and, in the case of authorized officer of the assuming iasurer. In the e\ent that the reinsurance is ceded through an underwriting manager or agent, the manager or agent shall pro\ide to the domestic ceding insurer evidence a trust, held in a United States bank or trust company that is a member of the Federal Re-sen'e System. "I his secunty may be in the form of Q} Cash; 6:14 NORTH CAROLINA REGISTER October 15, 1991 934 PROPOSED RULES (2) Securities that are listed by the Securities \aluation OtTicc of the National Associ-ation of Insurance Commissioners and that are qualified as admitted assets; (3) ("lean. irre\ocable, unconditional letters of credit, issued or confirmed bv a bank or trust companx that is a member of the { ederal Reser\e System: or (4) .\n\' other form ot secunty that is accept-able to the Commissioner. (e) A foreign or alien insurance company may be admitted and authorized to do business when it satisfies the Commissioner that it is m sub-stantial compliance with the pro\isions of this Rule. G.S. 5S-7-31). and G.S. 58-7-32. Statulory Auihoniy G.S. 5S-2-40{ Ij; 5S-7-I. TITLE 21 - OCCl PATIONAL LICENSING BOARDS Nootice is hereby given in accordance with G.S. 150B-21.2 that the \.C. Stale Board of Certified Public .-iccountant Examiners intends to amend ruk(s) cited as 2/ .\CAC 8G .0306; and adopt ruleis) died as 21 SC.-iC SG .03/3. Thhe proposed effective dale of this action is .March I, 1992. Thhe public hearing will be conducted at 10:00 a.m. on December 16, 1991 at the \.C. State Board of CP.4 Examiners, 1 10 J Oberlin Road. Suite 104, Raleigh, SC 2"605. IXeason for Proposed Action: The Board was requested by licensees for amendment to the rules. K^ ommenl Procedures: Any person interested in these rules may present oral comments relevant to the action proposed at the public rule-making hearing or deliver written comments to the Board office not later than 5:00 p.m., Monday, Decem-ber 2, 1991. .4 nyone planning to attend the hear-ing should notify the Board office by 5:00 p.m. on .Monday, December 2, 1991. whether they wish to speak on the proposals and whether they will speak in favor or against them. Anyone speaking on the proposals will be limited to 10 minutes. Editors .\oie: 21 .\CAC SG .0313 has been filed as a temporaiy adoption effective September 25. 1991 for a period of ISO days to expire on March 22, 1992. CFIAPTER 8 - BO.\RD OF CERTIFIED PUBLIC ACCOLNTANT EXAMINERS SLBCHAPTER 8G - PROFESSIONAL ETHICS AND CONDUCT SECTION .0300 - OTHER RESPONSIBILITIES .0306 FIRM NAME OR STYLE OF A PRACTICE Any person, partnership, professional corpo-ration or professional association engaged in the practice of public accountancy (as defined in 21 NCAC 8A .0307 and .0308), other than existing firms practicing in the name of current or former partners or shareholders, must use the uords "Certified Pubhc Accountant(s)" or "CPA(s)" as part of or with their firm name. Use by a CPA practicing public accountancy by himself of any name other than his own name, or use by a partnership, a professional corporation or a professional association engaged in the practice of public accountancy of any name other than the names of one or more of its current or former partners or shareholders, must be approyed in advance by the Board. Statutory .Authority G.S. 55B-5; 93-12(9). .0313 FIRM NAME Notwithstanding any other provisions of these Rules, any existing firm practicing m the name of current or former p^irtners or shareholders is not required to use the words "Certified Public -\ccountant(s)" or "CF'.\(s)" as part of or with its firm name. Statutory Authority G.S. 55B-5; 93-12(9). 'k'k-k'k'k'k-k-k'k'k'k'k-k-k'k-k'k-k ly Otice is hereby gi\en in accordance with G.S. 150B-21.2 that the Board of Medical Examiners of the State of S'orih Carolina intends to amend rule(si cited as 21 \CAC 32B .0101, .0305, .0314 - .0315. 1 he proposed effective date of this action is February 1, 1992.' 1 he public hearing will be conducted at 8:00 a.m. on Sovember 14. 1991 at the Embassy Suites Hotel. 4700 Creedmoor Road. Raleigh. S.C. JXeason for Proposed .Action: Rule .0101 - De-finition is added to define a term included in amendments to titles within Subchapter 32B. Rule .0305 - To provide other avenues for licensure. 935 6:14 SORTH CAROLIS.A REGISTER October 15, 1991 PROPOSED RULES Rule .0314 - To reflect amendment to Rule .0305. Rule .03/5 - Allow the Board discretion in ac-cepting continuing medical education as a quali-fication for licensure. (^ omment Procedures: Persons interested may present oral statements relevant to the actions proposed at a hearing to be held as indicated above. Written statements not presented at the hearing should be directed to the following ad-dress: Administrative Procedures, NC Board of Medical Examiners. P.O. Box 26808, Raleigh, NC 27611-6808. CHAPTER 32 - BOARD OF MEDICAL EXAMINERS SLBCHAPTER 32B - LICENSE TO PRACTICE MEDICINE SECTION .0100 - GENERAL .0101 DEFINITIONS The following definitions apply to Rules within this Subchapter: (1) ACGME - Accreditation Council for Graduate Medical Education. (2) AOA - American Osteopathic Association. (3) Board - Board of .Medical Examiners of the State of North Carolina. (4) ECP'.MG - Educational Commission for Foreign Medical Graduates. (5) Fifth Pathway - an avenue for licensure as defmcd in the Directory of Accredited Resi-dencies 1977-1978, /Vmcrican .Medical Asso-ciation, pp. 30-32. The Directory is adopted by reference under G.S. 1 SOB- 14(b). (6) FLEX - Federation Licensing Examina-tion. (7) LC.ME - Liaison Commission on Medical Education. (8) SPEX - Special Purpose Examination. (9) A.MA Physician's Recognition Award - A.MA recognition of achievement by physi-cians who have voluntarily completed pro-grams of continuing medical education. (10) .American Specialty Boards - specialty boards approved by the American Board of .Medical Specialties. Statutory! Authority G.S. 90-6. SECTION .0300 - LICENSE BY ENDORSEMENT .0305 EXAMINATION BASIS FOR ENDORSEMENT (a) To be eligible for license by endorsement of credentials, graduates of medical schools ap-proved by the LCME or AOA must supply cer-tification of passing scores on one of the following written examinations: (1) National Board of Medical Examiners; FLEX - under R«te M4i Rule .0314 of this Section; (2) (3) Written examination other than FLEX from the state board which issued the or-iginal license by written examination; or (4) National Board of Osteopathic Examiners, aU parts taken after January J^ 1990. (b) Graduates of medical schools not approved by LC.ME or AOA must supply certification of passing scores on one of the following written examinations: (1) FLEX - under forie J^Ui Rule .0314 of tliis Section; aft4 or (2) Written examination other than' FLEX from the state board which issued the ap-plicant's original license by written exam-ination together with American Specialty Board certification. (c) A physician who has a valid and unre-stricted license to practice medicine in another state, based on a written examination testing general medical knowledge, and who within the past five years has become, and is at the time of application, certified or recertified by an /Vmeri-can Specialty Board, is eligible for license by endorsement. (d) Applicants for license by endorsement of credentials with l" I EX scores that do not meet the requirements of Rule .0314 of this Section must meet the requirements of Paragraph (c) of this Rule. Statutory Authority G.S. 90-/0; 90-/3. .0314 PASSING FLEX SCORE Physicians who have boon liconsod i» another fitato »» y«» basis ef a taken the FLEX exam-ination may be eligible to apply for a license by endorsement of credentials if they meet the fol-lowing score requirements: (1) FLEX taken before January I, 1983 - A FLEX weighted average of 75 or more on a single three day examination is required. (2) FLEX taken after January I, 1983 - A FLEX weighted average of 75 or more on a single three day examination, with a score not less than 70 on Day 1, a score not less than 75 on Day 11, and a score not less than 75 on Day III, is required. (3) FLEX taken after January 1, 1985: (a) A score of at least 75 on FLEX Compo-nent I and a score of at least 75 on FLEX Component II is required. (b) Components may be taken in tandem. Any component that is failed may be re- 6:14 NORTH CAROLINA REGISTER October 15, 1991 9.U PROPOSED RULES (c) taken; however, Component II may not be taken alone unless the applicant has passed Component I within the last se\'en years. Both components must be passed within seven years of the date of taking the initial examination. Statutory Authority G.S. 90-6; 90-/0: 90-/3. .0315 TEN YEAR QUALIFICATION (a) To be eligible for license by endorsement of credentials, an applicant who has not met one of the following qualifications within the past ten years of the date of the application to the Board, must take the SPEX, or other examination as determined by the Board, and attain a score of at least 75: (1) National Board of .Medical Examiners certification; (2) FLEX scores as required under Rule .0314 of this Section; (3) SPEX score of at least 75; (4) certification or re-certification from a spe-cialty board recognized by the American Board of Medical Specialties; or (5) complotod completion of formal postgrad-uate medical education as required under Rule .0313 of this Section. (4^ i\Mj\ Phycician's Rocognition Award. (b) The SPEX requirement may be waived upon receipt of a current AMA Physician's Re-cognition Av\3rd. (c) This requirement is in addition to all other requirements for licensure and may be applied as the Board deems appropriate. Statutory Authority G.S. 90-//; 90-/3. 937 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES /\. dopted rules filed by the Department of Revenue are published in this section. This department is not subject to the provisions o/G.S. I50B, Article 2 requiring publication in the N.C. Register of proposed rules. Ejffective October /, 1991, the Departments of Con-ection and Revenue are subject to G.S. ISOB, Article 2A. The rules appearing in this section were filled prior to October 1 , 1991 and are not subject to the notice requirements. LJpon request firom the adopting agency, the text ofi rules will be published in this section. TITLE 5 DEPARTMENT OF CORRECTION CHAPTER 2 - DIVISION OF PRISONS SUBCHAPTER 2A - ORGANIZATION AND PERSONAL CONDUCT (REPEALED) SECTION .0100 - ORGANIZATION OF THE DIVISION OF PRISONS .0101 GENERAL .0102 SECTION CHIEFS \MTH SPECIFIC MANAGEMENT FLECTIONS .0103 SECTION CHIEFS WTFH AUTHORITY OVER FACILITIES History Note: Statutory Authority G.S. I43B-10; 148-4; 148-11; 148-19; 148-22; Efifi February /, 1976; Repealed Eff November I, 1991. SECTION .0200 - CONDUCT OF EMPLOYEES .0201 GENERAL .0202 CONDITIONS OF EMPLOYMENT History- Note: Statutory Authority G.S. 14S-3; 148-11; 148-23; Efifi February 1, 1976; Amended Efifi July 1, 1987; May 1, 1987; August 1, 1983; Repealed Efifi. November 1 , 1991 . SECTION .0300 - APPEARANCE REGULATIONS .0301 GENERAL .0302 APPEARANCE History Note: Statutorv Authority G.S. 143B-262; 148-11; Efifi November 1, 1976; Repealed Efifi. November 1 , 1991. SECTION .0400 - EMPLOYEE PERFORMANCE APPRAISAL .0401 GENERAL .0402 PROCEDURES Histoiy Note: Statutory .Authority G.S. I43B-261.1; 143B-36I.1; Efifi December 12. 1977; Repealed Efifi. November 1 , 1991 . 6:14 NORTH CAROLINA REGISTER October 15, 1991 938 FINAL RULES SECTION .»>5(M) - CERTIFICATION REQUIREMENTS FOR EDUCATIONAL PERSONNEL .0501 GENERAL .0502 DEFINITIONS AND EMPLOYMENT STANDARDS .0503 PROMSIONAL CERTIFICATION .0504 CERTIFICATION AND CERTIFICATION RENEWAL .0505 FAILURE TO MAINTAES CURRENT CERTIFICATION .0506 CERTIFICATION RENEWAL PROCEDURE .0507 IN-SERMCE TRAFSFSG FOR TEACHERS .05(»8 SALARY SCHEDULES OF CERTIFICATED PERSONNEL .0509 STATEMENT OF JOB DUTIES AND RESPONSIBILITIES .0510 HIRFSC. PROCEDURES History Note: Statutory Authoritv G.S. II5C-II0: II5C-295: II5C-296; II5C-297: Eff. July I, I9S5; Repealed Eff. November I, 1991. SUBCHAPTER 2B INMATE CONDUCT RULES: DISCIPLESE SECTION .0100 - GOOD TIME AND GAIN TIME .0101 PURPOSE (a) The General Statutes authorize the awarding of various sentence reduction credits to selected in-mates. The awarding of such credits ser\'es as an incentive for inmates to be productive and act responsibly. Effective and efticient allocation of good time and gain time awards is a critical element for maintaining order, security, and appropriate management of the inmate population. (b) Tliis policy establishes a method of computing sentence reduction credits in the form of Good Time for satisfactory behavior. Gain Time for participation in work or program assignments, and meritorious time for behavior or specific acts not normally required of an inmate. This policy applies to inmates confined in any facility in the Division of Pnsons of the North Carolina Department of Correction, a jail, a regional confinement facility, a "County Farm", or any other local confinement facility established for the incarceration of con\icted offenders. History Note: Statutoty Authoritv G.S. I4S-II: 148-13; J5A-/340.7; Eff Febniarv I. 1976; Amended Eff November I. 1991; September I, I9S3; February I, 1982; February 23. 1981. .0102 GOOD TIME (a) Award of Good Time. With the exception of those inmates serving sentences as specified in Rules .0106, .0107, and .0108 and those inmates con\icted of Class A and B felonies committed after the Fair Sentencing Act became effective, all inmates shall be awarded good time credits at the rate of one day deducted from the inmate's prison or jail term for each day the inmate spends in custody without a major infraction of prison conduct rules. (b) Forfeiture. Good Time shaJl be subject to forfeiture through disciplinan,^ action for con\'iction of major infractions as the result of violations of prison conduct rules. (c) Restoration of Forfeited Good Time. Good Time forfeited through disciplinary action may be restored by unit superintendents, area administrators, institution heads, and, in the case of inmates confined to local confinement facilities, the sherifi" or administrator of a regional confinement facility. Such restoration shall be based upon documented incidents of improved behavior by the inmate. History Note: Filed as a Femporary Amendment Eff. April I , I9S3 for a Period of 60 Days to Expire on June f J983: Statutory Authority G.S. 148-11; 148-13: ISA- 1 340.7; Eff February I. 1976: Amended Eff November I, 1991: April I, 1985; September I. 1983: June I, 1983. .0103 GAIN IIME 939 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES (a) Regular Gain Time. Inmates other than those convicted of felonies committed after the effective date of the Fair Sentencing Act who perform work, whether full-time or part-time, or participate in specific training programs which would assist their productive re-entry into the community, shall be allowed sentence reduction credits which shall be regulated as Regular Gain Time I, II, and III. Reg-ular Gain Time shall not be subject to forfeiture for misconduct and shall be administered as follows: (1) Regular Gain Time I. In addition to Regular Good Time credits, inmates who perform short-term work assignments and/or who participate in specific training programs requiring a mini-mum of four hours of productive activity per day shall receive credit at the rate of two days per month. (2) Regular Gain Time II. In addition to the Regular Good Time credits, all inmates who satis-factorily perform job assignments and/or who participate acceptably in specific training pro-grams requiring a minimum of six hours per day shall receive credit at the rate of four days per month. (3) Regular Gain Time III. In addition to Regular Good Time credits, all inmates performing as-signed jobs with requirements for special skills or specialized responsibilities such as specialised maintenance, cook, equipment operator, canteen operator, or inmates participating in fulltime specific training programs requiring a minimum of six hours per day shall receive credit at the rate of six days per month. (b) Fair Sentence Gain Time. Inmates convicted of felonies committed on or after the effective date of the Fair Sentencing Act shall be allowed sentence reduction credits which shall be regulated as Fair Sentence Gain Time I, II, and III. The credit received shall be calculated for work performed as listed in Rule .0103(a)(1), (2), and (3). Credit shall be received for participation in study and rehabihtative programs after June 3, 1985, as calculated by using the categories in Rule .0103(a)(1), (2), and (3). (c) Meritorious Time. The Director of the Division of Prisons or the Director's designated repre-sentative may award additional sentence reduction credits to deserving inmates. Such awards shall not exceed 30 days per month for work pertormed nor 30 days for each act of exemplary conduct. Con-sideration for meritorious time awards will be based upon the following categories; (1) Work Performed. (A) Overtime. Overtime is defmed as satisfactory performance in a job and/or program activity beyond a regular forty-hour work week. Inmates assigned to the Work Release Program are not eligible to receive overtime based on a work release job. Fair Sentence inmates are not eli-gible to receive overtime based upon a program assignment. Fair Sentence inmates may receive overtime based on work performed. (B) Adverse Working Conditions. Inmates are eligible for additional sentence reduction credit for work performed during inclement weather. Inclement weather is defmed as a chUl factor of below 20 degrees Fahrenheit or a temperature above 95 degrees Fahrenheit. Such conditions may include rain, sleet, snow, or other unusual or abnormal circumstances as determined by the appropriate approving authonty. (C) Fmergency Conditions. Inmates are eligible for additional sentence reduction credits for work performed during emergency conditions. Facility Superintendents will determine when an emergency condition exists. Such emergency conditions may include power failures, forest fires, work stoppages, riots, state-wide emergencies established by the State Emergency Response network or other similar emergency conditions. (2) Exemplary Conduct. (A) Exemplary Acts. Inmates are eligible for additional sentence reduction credits, not to exceed 30 days for each act, based upon the performance of exemplary acts. Exemplary acts are defmed as unusual deeds or acts performed by an inmate. (B) Exceptional Educational Achievements. Inmates attaining an educational degree are eligible for additional sentence reduction credits at a rate of 30 days per achievement. These awards are limited to successful completion of the General Educational Development Test (GED), receipt of a vocational trades license or trades certification based on successful completion to a formal program of vocational course work and supervised training, the attainment of a Associate of /Vrts or Science Degree (i\A. AS), or the achievement of a Bachelor of /Vrts or Science Degree (BA, BS) or Graduate Degree (MA, MS, Ph.D., etc.). Inmates identified as Exceptional Stu-dents Program participants or other irmnates identified as special students by educational au-thorities may be awarded an additional five days per month for documented positive progress towards established educational goals in keeping with their individual education plans. (3) Prison Population Reduction. Irmiates may be eligible for additional sentence reduction credits for good conduct during prison population reduction pursuant to G.S. 148- 13(b) and (d). 6:14 NORTH CAROLINA REGISTER October 15, 1991 940 FINAL RULES History Sole: Filed as a Femporary Amendment Fff. March 21 , 1987 For a Period of 43 Days to Expire on Slav 1 , 1987; Statutory Authority G'.S. 148-11; 148-13;' I5A-I340.7; Fff. February I, 1976; Amended Fff. Smember 1, 1991: May I. 1987; October I, 1983; September I, 1985. .0104 PROCEDURE (a) Recording Sentence Reduction Credits. ( 1 ) Recording. Ciood lime will he computed automatically on the inmate's record. Gain Time, .Meritorious Time, and Restored Good Time awards must be initiated by the unit superinten-dent or institution head upon the designated reduction credit form and shall be approved as provided in Paragraphs (b) and (c) of this Rule. Transfers automatically terminate Regular and I'air Sentence (jain lime status for inmates in the custody of the Division of Prisons. (2) Accumulation. Meritorious Time awards will be accumulated and recorded on an hour for hour basis including credits accumulated for part-time assignment or for multiple part-time activity participation and submitted in whole days, except such credits may be authorized for an exemplary act at a rate not to exceed 30 days for each act to the appropriate approving authority. A whole day is defined as eight hours. (3) Local Confinement Facilities. In the case of inmates confined to local confinement facilities, pursuant to court commitment, the sheriff or administrator of a local confinement facility shall establish procedures for granting, approving, and documenting sentence reduction credits. In the case of inmates confined to local confinement facilities, pursuant to a contractual agreement with the Department of Correction, the sheriff or administrator shall forward recommendations for granting sentence reduction credits to the Di\isian of Prisons' designated approving authority as listed in .0104(b). The Division of Prisons' approvmg authority will cither approve, modify, or disapprove the award. All Di\ision of Prisons' authoriized credits shall be recorded upon the sentence reduction credit form. (4) Recommendations and Submission. Sentence reduction credits will be submitted only by the unit of pennancnt assignment for inmates in the custody of the Division of Prisons. Rec-ommendations for sentence reduction credits for such inmates housed temporarily at a prison facility other than the regular unit of permanent assignment will be forwarded to the unit of permanent assignment for approval and recording documentation. (b) /Vppro\ing Authorities. Sentence reduction credit awards are subject to approval as foUows: (1) Unit superintendents shall have authority to approve Gain Time awards and to approve Meri-torious Time awards and to make lost good time restoration awards not to exceed 10 days per month per inmate. (2) Institution heads shall have authority to approve Gain Time awards and to approve Meritorious lime awards and to make lost good time restoration awards not to exceed 30 days per month per inmate. (3) Area administrators shaU have authority to approve Meritorious Time awards and to make lost good time restoration awards not to exceed 30 days per month per inmate. (4) ,AU .Meritorious Time awards and restoration of lost good time awcirds which exceed 30 days in a month must be approved by the Director of the Division of Pnsons. llisioty Sote: Statutory Authority G.S. 13A- J 340.7; 148-11; 148-13; Fff February 1. 1982; Amended Fff Sovember 1. 1991; August I. 1986: September 1, 1983. SECTION .0200 - DISCIPLINARY PROCEDURES .0201 GENERAL (a) Initial. vVny member of the state correction service or other authorized person who witnesses what appears to be an act of misconduct by an Lnmate should take appropriate action to pre\ent con-tinuation of any actual misbehavior by that inmate. Counseling may be suilicient and should be tried when no additional action appears necessary to stop the misbehavior and prevent a recurrence. As-sistance should be obtained from other persormel when needed to enforce discipline with minimum risk 941 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES to persons or property. The inmate may be placed in administrative segregation when this action ap-pears to be necessary to control that inmate or to prevent further disorder. (b) Reports. When an observer of apparent misconduct by an inmate concludes that counseling wLU not be sufficient action because the suspected offender does not appear responsive or because of the seriousness of the suspected offense or when an inmate observes serious misconduct, the observer should report the matter to the officer designated by the superintendent to investigate offenses com-mitted. (c) Investigations (1) The designated officer should begin his investigation as soon as possible, and in any event within 24 hours after being notified of a suspected offense, unless criminal prosecution is contemplated, in which case the criminal investigators should initiate their investigation before the investigation for disciplinary procedures begins. He should discuss the matter with the person reporting the incident and with the inmate or inmates accused. Where necessary to ascertain the true facts, he should interview other witnesses, make searches, and employ other appropriate investigatory techniques. (2) When the investigating officer is satisfied he has learned the relevant facts, he may dismiss the charges if he concludes that the facts do not justify further proceedings. In that event, he should explain his action to the person reporting the suspected offense and also to the inmate accused. (3) If the investigating officer concludes that the facts found do justify further proceedings, he should obtain written and signed statements from the p>erson reporting the suspected offense, from the suspected offender, and from the other persons providing pertinent information. (4) The accused inmate should be advised by the investigating officer that: (A) He has the right to submit names of requested defense witnesses and have them caUed to testify provided the calling of witnesses does not jeopardize or threaten institutional or individual security. (B) The number of witnesses vvUl be Limited to avoid useless repetition of the same evidence to be presented at the hearing. Physical evidence will only be preser\'ed upon written request of the inmate and provided that retaining or presenting the evidence does not threaten institutional or an individual's security. (5) The investigating officer should take written statements from aU witnesses. If statements are not taken from all witnesses, the investigating officer should record their names with an explanation for not taking their statements. (6) The investigating officer should make written notes of any observations made by him during the course of the investigation which directly relate to the alleged offense, and he should take under his control any physical evidence available. Upon completion of the investigation, this officer should make such changes in the status of the accused as seem warranted by the facts found. (7) The results of the investigation should be presented to the superintendent as soon as possible. If more than 48 hours are required to make the investigation and present the results, authority to extend the time should be obtained in writing from the unit superintendent or institution head who should establish the time period of extension. Before the superintendent grants the exten-sion of time, he should indicate on the DC-138A whether the inmate wiU be placed or continued on administrative segregation and the reasons for this decision. (d) Defmitions. The word "umt" used in this Section is to be understood to refer to any confinement facihty of the Division of Prisons. The term "superintendent" will be interpreted as including the warden at Central Prison. History Sole: Statutory Authority G.S. I4S-I I ; Eff. February I, 1976; Amended Eff. November I, 1991; December I, 1986; June I, 1984. .0202 DISPOSITION BY SLPERINTENDFAT OR DESIGNEE (a) The superintendent should first determine whether the investigation report indicates that he may dispose of the matter by counseling the inmate or inmates concerned. The investigation report in such cases should be filed at the unit together with a signed statement regarding the superintendent's action. (b) If the superintendent or his designated representative decides formal disciplinary^ action is required, he should fill out an offense report. He should make such changes in the status of the accused as he feels appropriate pending a hearing on the matter. The superintendent, or his designated representative, should indicate on the DC-138A whether the inmate wiU be placed or continued on administrative segregation pending the disciplinar>^ hearing and the reasons for this decision. 6:14 NORTH CAROLINA REGISTER October 15, 1 991 942 FINAL RULES (c) The superintendent or his designated representative should make a preliminan.' determination as to whether the alleged offense should be classified as minor or major. He should be guided in this re-gard by the classification of offenses in 5 NCAC 2B .0300. If he decides that an offense classified as minor in 5 NCAC 2B .0300 should be dealt with as a major offense in a given case, he should state in writing the matters in aggravation that he deems to justify such handling; if he decides that an otTense classified as major in 5 NCAC 2B .0300 should be dealt with as a minor offense, he should state in writing the matter in mitigation that he deems to justify this decision. He should sign this statement and include it in the case records. (d) When the superintendent or his designated representative decides that an accused is to be dealt with by formal discipliniiry action, he should give the accused notice in writing of the charge including a statement of the misconduct alleged and of the rules this conduct is alleged to violate. If the offense charged is classified as minor by the superintendent or his designated representative, he should ask the accused whether he admits guUt. If so, the superintendent or his designated representative, should allow the offender to make a statement. The substance of the statement should be summarized in the record. The superintendent or his designated representative, should then decide on the disposition. He may impose any measure authorized as a disposition for minor offenses, or he may suspend such imposition on condition of good behavior for a stated period of time not to exceed three months. He should note his decision on the offense report. (e) If the accused denies guilt where a minor offense is charged, the superintendent should order the accused to appear before a unit disciplinar,' committee. Where major rnfractions are alleged, the matter will be referred to an area disciplinars' committee. Referrals to a disciplmar\" committee should be made by the superintendent or his designated representative within 48 hours after he receives the investigation report. In any case where this is not possible, the reason for the delay should be explained in uriting by the superintendent or his designated representati\e, and his signed statement respecting this should be made a part of the case record. HistOfT Xote: Statutory Authoritv G.S. I4S-1 1; Eff. Februarv I. 1976; Amended Eff. Xovember I, 1991; June 1, I9S4. .0203 DISCIPLrSARV COMMITIEES (a) Unit Disciplinary Committee (1) The superintendent should appoint one or more disciplinar.' committees from the staff of his unit to hear and determine the disposition of minor offenses charged against inmates assigned to his unit. These committees should be composed of three members chosen so as to pro\ide a balanced and impartial tribunal. No person who initiates the charges to be heard or who is a witness in the case may be a member of the committee to which the case is referred. The superintendent should designate one member to serve as chairman. The appointments and designations should be made subject to the approval of the area administrator. (2) The chairman of a unit disciplinary committee to which a case has been referred should arrange for a hearing on the charge within 48 hours after the referral. The accused should be brought before the committee and confronted with the facts established by investigation reports which tend to support the charge against him. The accused should be permitted to assert a defense or otherwise explain his conduct. The chairman may summon to testify any witnesses or other persons with relevant knowledge of the incident, and may allow the accused to question an\' person so summoned. (3) If guilt is established by substantial evidence, the unit disciplinar} committee ma\' impose one or more measures authorized as a disposition for minor offenses. The committee ma>' suspend such imposition on condition of good behavior for a stated period of time not to exceed three months. Its decision should be noted in the record and certified by the chairman. (b) x\jea Disciplinary Committee (1) Each area administrator should appoint one or more area disciplinan" committees from per-sonnel within his command if a balanced and impartial tribunal can be pro\'ided in this manner. There should be not less than three nor more than five members. When the offense occurred at a unit, no person who initiates the charges to be heard, or who is a witness in the case, or who is on the staff of the unit to which the accused is assigned may be a member of the area disciplinar." committee to which the case is referred. WTien the offense occurred at a major in-stitution, no person who initiates the charges, or who is a witness in the case, or who is in a position of direct supervision over the accused may be a member of the area disciplinar)" com- 943 6:14 \ORTH CAROLL\A REGISTER October 15, 1991 FINAL RULES mittee to which the case is referred. The Director of Prisons should provide that such hearings be held by a disciplinary' committee appointed by the Institution Head or his designated repre-sentative. TTie area administrator institution head should designate one member to serve as a chairman. (2) Cases referred to an area disciplinary committee should be scheduled for a hearing within fourteen days of the referral. The accused should receive not less than 72 hours prior to the hearing, written notice of the charges against him, unless such 72 hour notice be waived in writing by the accused. If a delay for any other reason is desired by the unit superintendent or his designated representative or the accused, the one desiring the delay should state his reason in a written request to the area administrator who may grant such a delay for good cause. (3) The unit superintendent should insure that the investigation report, all written statements and any other pertinent items of information or evidence are properly compiled for presentation to the committee, and that the accused and all needed witnesses are available at the time and place of the hearing. (4) The chairman of the disciplinary' committee should document reasons for declining to call re-quested witnesses and declining to present items of physical evidence on the DC- 138. The fac-tors that the chairman may consider when ruling on an inmate's request to call witnesses or present items of physical evidence should include but not be limited to: (A) Relevance; (B) Cumulative Testimony; (Cj Necessity; and (D) Hazards presented by an individual case. (5) The unit superintendent may appoint a member of his staff to present the case to the area dis-ciplinary committee. The accused may request that a particular member of his unit's staff be appointed to assist him. The unit superintendent should allow this request unless the accused requests one of his accusers or other inappropriate person, in which event the superintendent should appoint another staff member. Yht chosen or appointed representative should assist the accused both in preparing for the hearing and at the hearing. The staff assistant does not serve as an advocate. His role is only to assure that the inmate has an opportunity to present his version of the facts. The representative should document on a DC-138B the way in which he assisted the accused either before or during the hearing. (6) If the chosen or appointed representative has prior knowledge that the accused is gudty, he should inform the accused of that fact so that another staff member may be chosen if desired. Still, an appointed or chosen staff member can and should aid the accused in gathenng and presenting evidence, even though he thinks that the accused is probably guilty. (7) The chairman of the area disciplinary committee should begin the hearing by reading the charges to the accused and asking him whether he admits to committing the offense. If the accused denies guilty, the evidence bearing on this issue should be presented. The accused should be given an opportunity to refute or explain e\idence against him and to present evidence and make a statement in his own behalf. Witnesses presenting rele\ant testimony on his behalf may testify in person or by telephone. WTienever the presentation of live testimony or physical evidence would jeopardize or threaten institutional or individual security, written statements of the facts of the incident gathered by the in\estigatLng officer may be used. Written statements of the ad\erse witnesses, including the accuser, may be used. The inmate should not be permitted to cross-examine witnesses. If the chairman deems it necessary' to withhold the identity of the primary accuser or any other witness due to the threat of reprisal, the accused should be in-formed of the part of testimony or statement of the accused which can be revealed without dis-closing his identity. (S) rVfter all evidence relating to guilt or innocence has been presented, the chairman v\ill ha\e the room cleared of all persons who are not voting members of the committee, except uninvolved people permitted to observe committee deliberations for educational or training purposes. If the committee does not feel that a proper decision can be reached on the basis of the information at its disposal, the chairman may reopen the hearing for additional questiomng, postpone the hearing for one week in an attempt to obtain additional information, or dismiss the charges. (9) Lpon reaching a decision as to the guilt or innocence by majority vote, the chairman should enter the committee's fmdings and rationale on the record and reopen the hearing to advise the inmate of the decision. If he has been found guilty or if he admits guilt when the charges are read, the committee should hear any matter pertinent to the issue of proper disposition and then close the hearing for deliberation on this issue. Upon reaching a decision by majority \'ote as 6:14 NORTH CAROLINA REGISTER October 15, 1991 944 FINAL RULES to the disposition and having noted the reasons for this determination on the record, the chair-man should reopen the hearing to advise the inmate of the decision, inform him of the fact that it will be reviewed, and permit him to have entered on the record any objections he may have to the decision. The chairman should explain to the inmate that if he voices an objection, any punitive aspect of the decision wLU not take effect until the case is reviewed and the punishment is approved by the reviewing authority, while if no objection is made the decision wlU take effect immediately but be subject to being overturned or amended by the reviewing authority. (10) If the accused admits guilt or if he is found guilty of a minor offense by the area disciplinar,' committee, the committee may impose one or more of the measures authorized for minor of-fenses. If he admits guilt or if he is found guilty of a major offense by the area disciplinar}' committee, the committee may impose one or more of the measures authorized for minor of-fenses and in addition or in lieu thereof one or more of the measures authorized for major of-fenses. The committee may suspend such imposition on specified conditions for a stated period of time not to exceed six months. When an inmate is found guilty of possessing funds in a form other than that authorized by Division of Prisons policies or in excess of the authorized amount, the chairman should make a separate ruling that the unauthorized funds should be permanently confiscated and placed in the Weffare Fund. (11) The chairman of the committee should be responsible for insuring that all forms are properly completed. The inmate should be entitled to a copy of a written statement of the evidence relied on by the committee and the reasons for the disciplinarv' action. Certain items of evidence may be excluded if necessar\" to protect a witness or informant from reprisal. When information supplied by confidential informants is relied upon, the chairman should document in the record the reasons why the information provided was trustworthy or that the informant has provided reliable information in the past. Copies of Forms DC- 138 and DC- 138(c) should be forwarded to combined records and placed in the inmate's headquarter jacket. The originals of these forms wiU be placed in the inmate's field jacket. History Xote: Statutory Authoritv G.S. 148-1 1; Eff. February I. 1976; Amended Eff. Sovember I. 1991; December I, 1986; June 1, 1984. .0204 REMEW PROCEDl RES (a) A re\iew of all actions by disciplinary committees should be made by the appointed authorities within seven days of the committee's decision. (b) The review should be directed to the consideration of whether the record indicates that the proper procedures were foUowcd during the course of the in\'estigation and hearing, and whether the inmate received a substantively full and fair hearing. The reviewing authority should not substitute his judge-ment for that of the committee's unless it is necessary to do so in order to correct a prejudicial abuse of procedures or to remedy a clearly erroneous and unfair decision. (c) The reviewing authority is authorized to; (1) approve the committee's decision; (2) order a re-hearing in whole or in part: (3) disapprove the committee's decision and dismiss the case; (4) reduce, but not increase, any punitive aspect of the committee's decision; (5) modify any administrative or treatment decision made by the committee. (dj The reviewing authority wlU enter on the record his reasons for taking any action other than ap-proving the committee's decision. (e) The unit and the inmate concerned should be notified of the reviewing authority's decision with-out delay. (f) The full record of the case wiU be filed at the location of the reviewing authority. (g) The decision of the reviewing authority may be appealed in writing directly to the Director of Prisons or his designee. His decision is not subject to further review. Histoiy Xoie: Statutory^ .Authority G.S. 148-11; Eff February 1, 1976; .4 mended Eff Sovember /, 1991 . .0205 AUTHORIZED DISCIPLINARY PROCEDURES (a) For minor offenses arising out of a single incident, one or more of the following are authorized: 945 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES (1) reprimand; (2) suspension of one or more privileges for a period not to exceed 30 days. No privileges may be suspended which the facility superintendent cannot on his or her own authority grant, such as work release. Privileges which may be suspended include, but are not limited to, access to the movies, telephone, yard privileges, and recreational activities. Visitation privileges may be sus-pended when a disciplinary offense occurred during visitation; (3) extra duties; The total hours of extra duty should not exceed 40 and no more than four hours should be performed on any working day and no more than eight hours on other days. The total period over which the extra duty extends should not exceed 30 days. (b) For major offenses arising out of a single incident one or more of the measures authorized for minor offenses may also be imposed and in addition or in lieu thereof one or more of the following: (1) confinement in disciplinary segregation for a period of 1 to 30 days. If the disciplinary committee imposes a maximum and minimum term of confinement, the Superintendent/Institution Head wUl have the discretion to release the inmate at any time within and including the minimum and maximum term. The irunate will receive day-for-day credit for time spent on administrative segregation pending a disciplinary hearing towards his total period of confinement in disciplinary segregation; (2) loss of up to 30 days time eamed by previous good conduct; (3) loss of any or all minimum custody privileges (work release, study release, home leave, com-munity volunteer leave, and all authorized outside activities) or loss of minimum custody status; Only the area disciplinary committee may make punitive level adjustments. The appropriate review date of level adjustment may be determined by the area classification committee accord-ing to the inmate's behavior foUowing the infraction. If the inmate is to be demoted out of minimum custody, he wUl be referred to an area classification committee for reassignment in accordance with departmental procedures. (c) For each unrelated offense charged on the same hearing day, additional punishment may be im-posed in accordance with these Rules. (d) Inmates who commit infractions on segregation may be confined in disciplinary segregation for additional periods of 1 to 30 days. History Note: Statutory Authority G.S. 148-1 1 ; Eff. February I, 1976; Amended Eff. November 1, 1991; December I, 1990; July I, 1984; June I, 1984. .0206 MODIFICATIONS The Director of the Division of Prisons may authorize modifications of this procedure consistent with its fundamental principles, provided any modification should be in writing, approved by the Secretary of Correction, and incorporated in the policies and procedures of the Department. History Note: Statutory Authority G.S. J48-/ J; Eff February /. 1976; Amended Eff. November I, 1991; June 1, 1984. SUBCH.4PTER 2C - CLASSIFICATION SECTION .0500 - PROMOTION OF FELONS TO MINIMUM CUSTODY .0504 PROCEDURE Each time the unit/institution classification committee formally reviews a case, a recommendation will be made. Form DC-121 wiU be completed and referred to the superintendent for review and approval or disapproval. After the final approving authority has acted on the case (whether approved or disap-proved), proper distribution of all copies will be made (combined records, area records, unit or insti-tution records). History Note: Statutory Authority G.S. 148-4; 148-11; Eff February 1, 1976; Amended Eff November 1 , 1991 . SUBCHAPTER 2D - PUBLIC COMMUTSTCATIONS 6:14 NORTH CAROLINA REGISTER October 15, 1991 946 FINAL RULES SECTION .0300 INMATE USE OF THE .MAILS .0301 GENERAL .0302 CORRESPONDENCE .0303 PROCEDURES FOR CENSORSHIP .0304 PACKAGES AND OTHER ITEMS .0305 MAIL RECORDS History Note: Filed as a Temporary Amendment Eff. February 1 , 1988 For a Period of 30 days to Expire on March 1 , 1988; Statutory Authority G.S. 148-1 1; Eff. February I, 1976; Amended Eff March /, 1988; January 1, 1985; March 1, 1984; February I, 1984; Repealed Eff November I, 1991. .0306 GENERAL (a) Inmates may write to anyone, but an individual inmate's privileges to write to a particular person or persons may be withdrawn by the superintendent warden of the correctional facility to which the inmate is assigned, upon request of the recipient, or if the recipient is a minor, at the request of his or her parents or legal guardian. Writing privileges also may be terminated for any of the reasons stated in Rule .0307(e) of this Section. The reason for withdrawal must be stated in a written notice to the inmate that should refer specifically to the letters previously returned. (b) It is the purpose of the mail policy to protect citizens in the community from offensive or threatening letters and prevent criminal activities and escape plots from developing through corre-spondence. To accomplish this, it is the responsibility of each facility mail room to stamp the outside of each piece of outgoing inmate mail (including packages) with the name of the correctional facility, (e.\., Mailed from Columbus Correctional Center). The stamp should be affixed to the front of the envelope above the address and between the return address and the postage stamp. This is not required at community residential facilities, i.e., Wilmington Residential Facility for Women. (c) The superintendent warden will be responsible for developing and implementing facility mail procedures consistent with this policy. The facility procedures must be reviewed annually to assure compliance with current Division of Prisons policy. History Note: Statutory' Authority G.S. I48-I I; Eff November 1, 1991. .0307 CORRESPONDENCE (a) Legal Mail. (1) Definition: Mail to or from attorneys, state and federal courts, the judiciary, the Industrial Commission, or legal aid services and Para-legals. (2) Legal mail from inmates shaU not be opened for inspection or impeded in its transmission. If there is any question as to whether an addressee is one of these persons, the mail can be held for not more than 24 hours to resolve the question. (3) Postage for legal mail from inmates will be paid from the Operating Fund provided the inmate is indigent. No other eligibility requirements apply to postage for legal mail. The 10 letter limitation on personal mail does not apply to legal mail. (b) Department of Correction Officials. (1) Definition: The Secretary of Correction, the Director of Prisons, any member of the Grievance Resolution Board or its staff, any member of the Board of Correction, the Parole Commission or its staff, or any official of the Department of Correction in the chain of command above the superintendent, warden to which the inmate is assigned, are defined as DOC officials. (2) Mail to DOC ofticials wiU be accepted within our system without postage. (3) Mail to DOC officials shall not be opened for inspection or impeded in its transmission. If there is any question as to whether an addressee is one of these persons, the mail can be held for not more than 24 hours to resolve the question. (c) Other Go\emmcnt Officials. (1) Definition: Any member of the Congress of the United States or any member of the General Assembly of North Carolina; the President of the United States or the Governor of North 947 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES Carolina; the Attorney General of the United States or the Attorney General of North Carolina; the Director or any agent of the Federal Bureau of Investigation are defined as other government officials. (2) Mail to other government officials will be considered as personal mail for the purpose of postage. (3) Mail to other government officials shall not be opened for inspection or impeded in its trans-mission. If there is any question as to whether an addressee is one of these persons, the mail can be held for not more than 24 hours to resolve the question. (d) Personal Mail. (1) Definition: Any mail to or from an inmate that is not defmed in Paragraphs (a), (b), or (c) of this Rule. (2) Postage for personal mail from inmates without funds will be paid from the Operating Fund provided the inmate is indigent. (3) Postage for personal mail from indigent inmates shall be limited to the cost of 10 first-class one ounce letters per month per indigent inmate. (e) Other Outgoing Mail. Personal mail from inmates may be sealed when placed in the outgoing mail and shall not be opened and censored unless the superintendent/warden or his designee has good cause to beUeve that: ( 1 ) The mail contains threats of physical harm against any person or threats of criminal activity. (2) The mail threatens blackmail or extortion. (3) The mail concerns sending contraband in and out of the correctional facility. (4) The mail concerns plans to escape. (5) The mail concems plans to violate departmental rules and policies necessary to maintain security and control. (6) The mail concems plans for criminal activity or violation of state or federal laws. (7) Tlie mail concems information which if communicated would create a clear and present danger of violence and physical harm. (f) Incoming Mad. (1) Inspection: The superintendent/warden shall provide for the inspection of all incoming mail by qualified members of the correctional facility. The inspection shall serve to prevent inmates from receiving through the mail contraband or any other material that threatens to undermine the security and order of the facility or which cannot be lawfully sent through the mail. Mail to inmates which appears to be from one of the persons Usted in Paragraphs (a), (b), or (c) of this Rule, shall be opened by correctional staff, who shall see that the contents are free of contraband and are in fact official or legal correspondence from the person whose name and return address appears on the outside of the envelope or package. The correspondence shall not be read beyond what is necessary to make this determination. (2) Censorship: Incoming personal mail may be opened and read by the superintendent/warden or his designee only if he has reason to believe that the contents of the letter fall into one of the categories listed in Paragraph (e) of this Rule. This Paragraph and Paragraph (e) of this Rule allow for inspection and censorship of mail only when necessary to protect the security of the facility and prevent criminal activity. No letter is to be opened or censored in order to eliminate critical opinions of Departmental policy or the Department's employees. All incoming personal mail is to be inspected but not read unless it falls in one of the categories listed in Paragraph (e) of this Rule. Under normal circumstances, incoming mad should not be read. (g) Mass MaiUng. Any massive attempt to use the mails to reach the inmate population or facility is inherently suspect. If the superintendent/warden has good cause to believe that such an attempt has been initiated in order to cause dismption or otherwise threaten the order and security of the facihty, the mail involved will be censored. If necessary, due to the security consideration stated in this Para-graph, the superintendent/warden may refuse delivery of this mail without notice to the inmate ad-dressee. (h) Rules on Letter Content and Stmcture. (1) Letters to and from inmates must be written in English unless an exception to this requirement is made by the superintendent /warden. (2) Letters may be typewritten, printed, or written legibly in longhand. (3) Letters to inmates should be addressed so that the full name of the inmate appears on the en-velope. The inmate shall instruct his correspondents to use the correct address as posted on the inmate's buUetin board. (4) Letters from inmates must have their fuU name and return address of the facility in the upper left comer of the envelope. 6:14 NORTH CAROLINA REGISTER October 15, 1991 948 FINAL RULES History Note: Statutory Authority G.S. 148-1 1; Eff. November I, 1991. .0308 PROCEDURES FOR CENSORSHIP If the superintendent/warden or designee decides that an inmate should be prohibited from sending or receiving any personal mail, the inmate should be notified in writing within 24 hours of the reason for censorship. The inmate shall be afforded the opportunity to appeal the decision in writing, within seven days, directly to the Director of the Di%'ision of Prisons. 7 he Director of Prisons or designee shall have the authority to reverse the prior decision if it is believed there is insufficient cause for the prohi-bition. The Director must take action on the appeal in seven days from the time the inmate's appeal is received. History Note: Statutory' Authority G.S. I4S-I I; Eff. November I, 1991. .0309 P.ACKAGES AND OTHER ITEMS (a) Sent by Inmates. Packages and large envelopes addressed to persons other than one of those listed in Rule .0307(a), (b), or (c) of this Section, may not be sealed for mailing by an inmate until inspected by a correctional officer and found free of contraband or material which constitutes a threat to the order and security of the facihty or which cannot be lawfully sent through the maU. This inspection shall be done in the presence of the inmate. If cleared for mailing, the item shall be sealed and placed in the mail by the sender in the presence of the inspector. (b) Sent to Inmates. Additional items sent to inmates shall be subject to inspection and handling by a correctional officer. The inspection shall be done in a secure location in the facility and shall not be done in the presence of the inmate. If the officer determines that the package or envelope contains contraband or other material that threatens the order and security of the facility, this material shall be confiscated. (c) Additional Items Sent to Inmates. In addition to letters, the following items may be received by an inmate through the mail, and are always subject to inspection and handling as provided in these Regulations: ( 1) clothing approved for use while incarcerated; (2) clothing to be used upon release (if received within 15 days of a scheduled release date); (3) musical instruments (when approval is secured in advance from the superintendent/warden); (4) unframed photographs, not to exceed 8" x 10"; (5) legal papers; (6) publications which may be received under 5 NCAC 2D .0100; (7) religious items; (8) money shall be sent by postal or bank money order or cashiers or certified checks. Cash sent by mail shall be returned to the sender with an explanation of the requirements for money orders and/or certified checks. Cash that is concealed or hidden within other mailed items in an at-tempt to avoid detection shall prompt an investigation and appropriate disciplinary action. Such cash will be confiscated if the inmate is found guilty of a disciplinary offense. Otherwise, it will be returned to the sender. If no return address is provided, cash received will be confiscated as contraband and deposited in the Inmate Welfare Fund. (d) Inmate Request for Other Items. Any inmate may request in writing permission from the Command Manager to receive through the mail a specific item that is not otherwise authorized. This request shall be forwarded through the chain of command to permit the views of area staff to be ex-pressed. Seasonal exceptions may be authorized by the Director of Prisons in addition to the List of items an inmate may receive through the mail. (c) COD Packages Sent to Inmates. No COD packages shall be accepted for any inmate and no inmate shall be authorized to send mail COD. Unauthorized items arriving by mail shall be returned to the sender at the expense of the inmate addressed. If the inmate is without funds, the package shall be returned at the state's expense or the inmate may donate it to a charitable organization or request it to be destroyed. A copy of the mail regulations shall be enclosed in the package to be returned. Packages that postal authorities will not accept for return to the sender shall be delivered to some charitable organization, or to a law enforcement agency in appropriate cases, and a receipt shaO be obtained for the same. 949 6:14 NORTH CAROLINA REGISTER October 15, 1 991 FINAL RULES History Note: Statutory Authority G.S. 148-11; Eff. November 1. 1991. .0310 MAIL RECORDS The mail officer shall keep a record on Form DC-218 showing the source and destination of all legal mail, packages and items of monetary value mailed by an inmate. Check and money order numbers shall also be recorded on Form DC-218. The mail officer opening packages and items of monetary value mailed by or to an inmate shall sign his name at the beginning of each day's entries and place his initials beside each entry. Tlie mail officer distributing such mail to inmates shall sign his name at the beginning of each day's entries and place his initials beside the signature of each inmate receiving such mail. History Note: Statutory Authority G.S. 148-1 1; Eff. November 1, 1991. SUBCHAPTER 2E - TREATMENT SECTION .0200 - HEALTH CARE POLICY .0202 FACILITY RESPONSIBILITY .0203 STAFF RESPONSIBILITY .0204 CLFSTCAL RESPONSIBILITY Histon' Note: Statutory Authority G.S. 148-1 1; 148-19; Eff February 1, 1976; Amended Eff. September 23, 1980; Repealed Eff. November 1 , 1991. .0205 MEETESGS AND REPORTS .0206 ANN-UAL RE\ lEW .0207 SKILLED NURSESG FACILITIES .0208 FACILITIES: EQUIPMENT: AND SUPPLIES .0209 FIRST AID KITS History Note: Statutory Authority G.S. 148-1 1; 148-19; Eff September 231 1980; Amended Eff. February 1 , 1983; Repealed Eff November 1, 1991. .0211 EMERGENCY SERVICES .0212 SPECIALTY CARE .0213 MENTAL HEALTH .0214 PROFESSIONAL LICENSURE .0215 NURSrSG SERVICES .0216 TRAESrSG OF HEALTH CARE STAFF .0217 TRAFSTNG OF CORRECTIONAL STAFF .0218 STANDCSG ORDERS AND PROTOCOLS .0219 USE OF STUDENTS AND INTERNS .0220 USE OF INMATES ES HEALTH CARE History Note: Statutory Authority G.S. 148-11; 148-19; Eff September 23, 1980; Amended Eff March 31, 1981; December 15. 1980; Repealed Eff. November 1, 1991. .0222 ESTAKE PHYSICAL EXAMINATION History Note: Statutory Authority G.S. 148-11; 148-19; Eff September 23. 1980; 6:14 NORTH CAROLINA REGISTER October 15, 1991 950 FINAL RULES Repealed Eff. Nmember I. 1991. .0224 MENTALLY DISTURBED INMATES .0225 CONTINl ITV OE CARE History Sole: Statutory Authority G.S. 148-11; 148-19; Eff. September 23, 19S0; Repealed Eff. November 1, 1991. .0230 SPECIAL HEALTH PROBLEMS .0231 DETOXIEICATION .0232 PROSTHETICS .0233 TRANSEERS EOR TREATMENT History Note: Statutory Authority G.S. 148-11; 148-19; Eff September 23. 1980; Repealed Eff November 1, 1991. .0236 rSEORMED CONSENT .0237 NO riEICATION ES CASE OE ILLNESS: INJURY OR DEATH .0238 PROCEDURES IN CASE OE DEATH .0239 PHARMACEUTICALS .0240 HEALTH RECORDS History Note: Statutory .Authority G.S. 148-11; 148-19; Eff September 23, 1980; Repealed Eff November 1, 1991. SECTION .0700 - WORK RELEASE .0703 WORK RELEASE CONDITIONS The following specific requirements must be met in order to grant work release for each eligibility categop,' listed m Rule .0702: (I) Misdemeanants court ordered for work release. (a) The commitment or court order from the sentencing court should provide: (i) The date work release is to begin; (ii) The prison or local confmement facility to which the offender is to be committed; (iii) A provision that work work release terminates the date the offender loses his job or violates the conditions of the work release program established by the Department of Correction; and (iv) A determination as to whether the earnings of the offender are to be disbursed by the Department of Correction or by the clerk of the sentencing court in the manner that the court in its order directs. (b) A misdemeanant court ordered for work release wiU be housed at the prison facility specified by the court. However, if the facility specified cannot house work release inmates due to over-crowding or other administrative purposes, inmates can be assigned to some other appropriate prison facility. For the purposes of this Rule, "overcrowding" refers to a population count above the designated capacity for the facility. "Administrative purposes" are defmed as man-agement practices which determine the classification, custody, programs and security at each unit. (c) Tiie inmate must not be awaiting trial on felony charges or have any felony detainers pending. (d) The inmate will be in minimum custody level III by the date work release is ordered to begin. (e) A misdemeanant court ordered for work release will be processed as outlined in Rule .0706(a). (fj If court ordered work release is delayed or disapproved, the classification authority will document the reasons for such action on the DC- 121. The inmate should be notified by a letter which shall set forth the reasons for the delav or denial. 951 6:14 NORTH CAROLL\'A REGISTER October 15, 1991 FINAL RULES (g) If an inmate who is court ordered for work release and has suitable employment is disapproved, the Area Administrator/ Institution Head or his designee will notify the sentencing judge by letter noting the reasons for disapproval. (2) Irmiates sentenced to a total sentence length of five years or less who are court recommended for work release and therefore requiring immediate work release placement. (a) The inmate must not be awaiting trial on felony charges or have any felony detainers. (b) The inmate must have suitable employment at the time of commitment in an area where there is a field unit or other facility suitable for housing the inmate. (i) "Suitable employment" shall require that: (A) The employer must pay at least the current minimum wage; (B) The employer must participate in an insurance program, preferably the Worker's Com-pensation Program, which will compensate the inmate for injury by accident arising out of and in the course of employment; (C) The work setting must provide an appropriately supervised environment. Employment by a family member is prohibited. A family member is defmed as father, mother, brother, sister, husband, wife, child, aunt, uncle, grandparents, in-laws, foster parent or other persons who acted in place of parents where such relationship can be verified. (D) Inmates disciplined by a regulatory body established by laws for conduct related to their work will not be placed in the same or similar work without consultation with the regulatory body and prior approval of the Secretary of Correction. (ii) The processing diagnostic center will confirm the job offer. Verbal verification will be fol-lowed up with a letter of confirmation except with a regular work release employer. The proc-essing diagnostic center will notify the proposed unit of housing for work release directly by telephone and win request an investigation of the work release job plan. Information concerning the uimate, the crime, the job plan particulars, Jind the other information as appropriate will be provided. The receiving unit will conduct the job investigation and will provide return notifi-cation to the referring diagnostic center by telephone within three working days. Diagnostic center staff wiU send a notification to the receiving area via a DCI terminal transmission stating a request for an investigation has been made. (iii) If a suitable facility is not within normal commuting distance of the inmate's employment, a contract may be negotiated with the county sheriff for housing the inmate at a local confinement facility. (iv) If suitable employment is not available at the time of the commitment, all other provisions in this Subsection do not apply until such employment is secured. The following procedure shall be followed: (A) The staff of the diagnostic center shall counsel and assist the inmate in his job search. The assistance shall include contacts with prospective employers on behalf of the inmate. (B) If suitable employment is not secured at the completion of the regular diagnostic process, the inmate shall be assigned to an appropriate field unit by the classification authority. The assignment should be made to facilitate the inmate's search for employment. The classifica-tion authority should consider promoting the inmate to minimum custody level III for work release only if otherwise eligible to further facilitate work release development and placement. The following is a suggested priority list of assignment locations. (I) i\n appropriate unit close to the inmate's home: (II) /\n appropriate unit within commuting distance of a promising job market; (III) An appropriate unit which is a reasonable compromise of the above priorities. (C) The program staff of inmate's field unit shall counsel and assist the inmate in his job search. The assistance shall include contacts with prospective employers. While seeking work release employment, the inmate may be given any appropriate duty assignment by the classification authority but the duty assignment shall not impair the inmate's opportunity for work release. When suitable employment is obtained, the inmate shall immediately be processed in ac-cordance with this Subsection. (c) The following custodial and correctional considerations, as defmed in (i) of this Rule, will pre-clude the inmate's participation in the work release program, (i) Even though an inmate is court recommended for work release, the inmate may be denied work release privileges by the classification authority under the following conditions: (A) The inmate has a prior criminal or prison record of escape or assaultive behavior which would normally result in the denial of work release privileges to an irmiate who had not been recommended by the court; 6:14 NORTH CAROLINA REGISTER October 15, 1991 952 FINAL RULES (B) The inmate has committed infractions subsequent to commitment under the sentence re-commending work release which would normally result in the denial of work release privileges to an inmate who had not been recommended by the court; (C) The inmate has a serious health problem, mental or physical, which warrants immediate treatment or obser\'ation on a continuing basis. ITiis problem shall be fully documented on the DC-121R;or (D) The inmate has committed major rule violations during a previous term of confinement during work release participation of sufficient magnitude to give cause for current program disapproval. (ii) If there is reason to beUeve that an inmate is subject to denial of work release privileges, his placement on the work release program may be temporarily delayed by the classification au-thority pending further study of his case and the fmal decision of the classification authority. (iii) If court recommended work release is delayed or disapproved, the classification authority wOl document the reasons for such action on the DC- 121. The inmate should be notified by a letter which shall set forth the reasons for the delay or denial. (iv) If an inmate who is court recommended for work release and has suitable employment is disapproved pursuant to the conditions of Rule .0703(2)(c)(i)(A) through (D), the Area Administrator Institution Head or his designee wiU notify the sentencing judge by letter noting the reasons for disapproval. (d) Subject to the considerations set forth in Rule .0703(2)(c), all inmates with court recommen-dations for work release are immediately to be placed in a minimum custody level III, for the purpose of work release only. The inmate wlU not have any other community privileges unless approved as provided in the existing policy relating to outside activities (5 NCAC 2F .0600). (e) Transfer to the appropriate field unit will be processed by the classification authority. Court ordered, recommended inmates approved for work release shall receive fust priority for housing assignments and transfers. A priority hst shall be estabhshed within each area. Court recom-mended and approved inmates shall receive the top priority based on the length of time in the prison system. TTie remainder of the list shall be composed of other inmates approved for work release in order of length of time since receipt of approval. (f) Inmates with a court recommendation for work release should be processed, transferred and placed on work release within ten working days of admission unless custodial and correctional considerations clearly preclude such an assignment or a work release facility is unavailable in the area of proposed employment. (g) A court recommendation which states work release is recommended or which states immediate work release is recommended wiU be interpreted as requiring immediate work release placement. (3) Inmates sentenced for crimes committed after July I, 1981, who are not court recommended for work release. (a) Inmates ser\'ing sentences totaling five years or less are eligible for immediate work release con-sideration. Those sentenced to greater than five years must be within three years of the maxi-mum release date or parole eligibility date except as approved by the Director of Prisons. (b) The inmate must not be awaiting trial on felony charges or have any felony detainers pending. (c) Suitable employment as defmed in Rule .0703(2)(b)(i) must be available prior to work release placement but approval for the work release program can be granted before an employment plan is developed. (d) If a suitable facility is not within normal commuting distance of the inmate's employment, a contract may be negotiated with the county sheriff for housing the inmate at a local confinement facility. (e) The inmate must be in minimum custody level 111 by the date work release is to begin. (f) 1 he inmate must not have had either an escape within six months or a major infraction within three months of work release approval. (4) Inmates sentenced for crimes committed prior to July 1, 1981, with sentences greater than five years. (a) The iiunate must be within three years of the maximum release date or parole eligibility date, except as approved by the Director of Prisons. (b) The inmate must have approval of the Parole Commission. For those inmates on approved MAPP Agreements with a total sentence length of less than 30 years, the MAPP Agreement represents work release approval by the Parole Commission. (c) The inmate must not be awaiting trial on felony charges or have any felony detainers pending. 953 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES (d) Suitable employment, as defined in Rule .0703(2)(b)(i) will be required for placement and may be required for Parole Commission approval as stated in Rule .0707(f). (e) If a suitable facility is not within normal commuting distance of the inmate's employment, a contract may be negotiated with the county sheriff for housing the inmate in a local confmement facility. (f) The inmate must be in minimum custody level III status on the date he is to begin participating in work release. However, approval for work release may be requested through the Parole Commission prior to attaining minimum custody level III. (g) The inmate must not have had either an escape within six months or a major infraction within three months of work release approval. History Note: Statutory Authority G.S. 148-1 1; 148-33.1; Eff. February I, 1976; Amended Eff. November I. 1991; December I, 1986; April 1, 1986; December 1, 1985. SECTION .1300 - STUDY RELEASE .1304 APPLICATION PROCEDURE .1305 REINSTATEMENT History Note: Statutory Authority G.S. 148-11; 148-13; Eff December 1, 1986; Repealed Eff. November 1 , 1991 . .1307 CHANGE IN EDUCATION PLAN .1308 PLACEMENT ON STUDY RELEASE .1309 REMOVAL FROM OR COMPLETION OF STUDY RELEASE History Note: Statutory Authority G.S. 148-11; 148-13; Eff December 1, 1986; Repealed Eff. November 1, 1991. SECTION .1500 - SAFETY AND HEALTH .1501 PURPOSE .1502 SUPERVISORY AND EMPLOYEE RESPONSIBILITY .1503 CONTRACTCSG AGENCY RESPONSIBILITY History Note: Authority G.S. 95-129.1; 95-130.1; 95-148; 148-11; Executive Order Number 6; Eff October 1, 1989; Amended Eff October 1, 1990; Repealed Eff November 1. 1991. SUBCHAPTER 2F - CUSTODY AND SECURITY SECTION .0100 - SEARCH AND SEIZURE .0101 GENERAL (a) In the searching of iimiates, all correctional officers and staff are required to act reasonably and professionally and within reason, employ a "common sense approach". Every effort should be made to assure that inmates are not unnecessarily embarrassed or humiliated. (b) The superintendent/warden will be responsible for developing and implementing a facility search and seizure procedure consistent with this policy. Facility procedures must be reviewed armually to assure compliance with the current policy of the Division of Prisons. (c) To control contraband, searches of inmates are authorized at the discretion of staff. Refusal to submit to a search may result in a forced search and disciplinary action against the inmate. History Note: Statutory Authority G.S. 14S-4; 148-11; Eff February 1, 1976; 6:14 NORTH CAROLINA REGISTER October 15, 1991 954 FINAL RULES Amended Eff. November 1 , 1991 . .0102 SEARCH History Sole: Statutory Authority G.S. 14-258.1; I5A-404; 148-4; 148-11; Eff. February I, 1976; Amended Eff. January 1, 1986; March I. 1985; Repealed Eff S'ovember 1 , 1991 . .0103 SEARCHES OE IN>EATES (a) Complete Searches. A complete search shall include a strip search (the removal of all of the in-mate's clothing), a search of the inmate's effects, and a visual search of the inmate's body cavities to look for contraband. The following rules apply to complete searches: (1) Posts that routinely involve complete searches should be staffed by correctional officers of the same sex as the inmates under their super-'ision. Under normal operations, complete searches of inmates should be conducted by trained staff of the same sex as the inmate. During an emergency operation, the commander may order complete searches of inmates by Criminal Justice Certified staff regardless of sex. (2) The receiving facility will conduct a complete search on ail inmates upon commitment to the Department of Correction, on return from escap>e or court, upon transfer from another facility, or placement on segregation (disciplman,', administrative, maximum custody, etc.). (3) .All inmates entering or leaving maximum, close or medium security facilities will be completely searched. (4j Inmates classified as maximum custody wiU be completely searched before and after visiting. General population inmates in close or medium custody wiQ be completely searched after visit-ing. (5) Minimum custody inmates assigned to facilities other than minimum security facilities will be completely searched after visiting. (6) Upon the discretion of the Superintendent or Officer-In-Charge and as indicated in the unit's Standard Operating Procedures, all or a random selection of minimum custody inmates wiU be searched daily upon the return from community based program activities. Such acti\ities in-clude but are not limited to Work Release. Study Release, Home Leave, Community Volunteer Lea\e, and Outside Work xA-Ssignments, etc. (b) Routine Searches. Routine searches are pat and frisk searches with the person clothed. A routine search may also include searches of personal effects. The following rules apply to routine searches: (1) Correctional staff of either sex may conduct routine searches of male and female inmates. (2) WTiere complete searches are not required, routine searches of minimum custody inmates shall be conducted upon the inmates leaving and returning to the facility for authorized outside ac-tivities. (3) Where complete searches are not required before or after visiting, routine searches shall be con-ducted. (c) Body Cavity Searches. Body cavity searches are the probing of body orifices in search of contraband. These searches are authorized by the supcnntendent 'warden or his her designee when there is probably cause to believe an inmate has concealed contraband in a body orifice. Body cavity searches are authorized only if a complete search has not produced the suspected concealed contraband. Body cavity searches shall be done by medical personnel of the Division of Prisons in a medical setting pursuant to procedures in the Health Care Procedures Manual. If medical personnel of the Di\ision of Prisons are not a\ailable, the procedure may be done by outside medical providers. An Incident Report (DC-432) must be completed to document a body cavity search. (d) Searches of Inmate's Quarters and Effects. Complete shakedown searches of inmate quarters and effects are authorized, regardless of whether there is reason to suspect any particular inmate of concealment of contraband. Searches of inmate quarters and effects are to be conducted randomly daily. Staff conducting the search should a\'oid any urmecessaPv' scattering, disruption, or disarray of the inmate's personal possessions during the search. Inmate's living quarters may be searched without the mmate being present. Normally, inmates will be present when their locker is searched. Histon- Sote: Statutory Authority G.S. 14-258.1; I5A-404; 148-4; 148-11; Eff November 1, 1991. 955 6:14 NORTH CAROLINA REGISTER October 15, 1991 FINAL RULES .0104 SEARCHES OF VISITORS AND OTHER PERSONS (a) Before and after every visiting period within the confines of a facility, a search of the room or area where the visits are held wlU be made to assure that no contraband has been concealed in or under any structure, equipment or furniture. (b) All visitors and all other persons who seek entry to any facility for any purpose may be subjected to a routine search of their person or their effects upon entering or leaving a facility or any time they are within the confmes of a facility. Such searches are authorized at the discretion of the Officer-In- Charge. Appropriate documentation shall be made to the Superintendent. (c) A routine search may also include the search of personal effects. Personal effects such as handbags, boxes, briefcases, or other items under the immediate control or access of the visitor, should remain outside the confmes of the facihty. When in the judgment of the Officer-In-Charge that it is necessary for any of these personal effects to be carried within the Institution, such personal effects will be subject to a thorough search. Visitors who refuse to agree to a search of personal effects will not be authorized to visit. (d) Routine searches of visitors and other persons see |