North Carolina register

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NORTH CAROLINA
REGISTER
IN THIS ISSUE
COWa
TITUl
itiomI
EXECUTIVE ORDERS
IN ADDITION
Tax Review Board
PROPOSED RULES
Architecture, Board of
Cultural Resources
Environment, Health, and Natural Resources
Human Resources
Secretary of State
LIST OF RULES CODDTED
RRC OBJECTIONS
CONTESTED CASE DECISIONS
RECEIVES
FEB 16 1995
KATHRINl R EVERETT
LAW LIBRARY
ISSUE DATE: February 15, 1995
Volume 9 • Issue 22 • Pages 1883 - 1962
INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODF.
NORTH CAROLINA REGISTER
The North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the General
Statutes. All proposed administrative rules and notices of public
hearings filed under G.S. 1 50B-2 1 .2 must be published in the Register.
The Register will typically comprise approximately fifty pages per
issue of legal text.
State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.
The North Carolina Register is available by yearly subscription at
a cost of one hundred and five dollars ($105.00) for 24 issues.
Individual issues may be purchased for eight dollars ($8.00).
Requests for subscription to the North Carolina Register should be
directed to the Office ofAdministrative Hearings, P. O. Drawer 27447,
Raleigh, N.C. 27611-7447.
ADOPTION, AMENDMENT, AND REPEAL OF
RULES
The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A ofChapter 1 50B
of the General Statutes.
Any agency intending to adopt, amend, or repeal a rule must first
publish notice of the proposed action in the North Carolina Register.
The notice must include the time and place of the public hearing (or
instructions on how a member of the public may request a hearing); a
statement of procedure for public comments; the text of the proposed
rule or the statement of subject matter; the reason for the proposed
action; a reference to the statutory authority for the action and the
proposed effective date.
Unless a specific statute provides otherwise, at least 15 days must
elapse following publication of the notice in the North Carolina
Registerbefote the agency may conduct the public hearing and at least
30 days must elapse before the agency can take action on the proposed
rule. An agency may not adopt a rule that differs substantially from the
proposed form published as part of the public notice, until the adopted
version has been published in the North Carolina Register for an
additional 30 day comment period.
When final action is taken, the promulgating agency must file the
rule with the Rules Review Commission (RRC). After approval by
RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).
A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative Hearings
for publication in the North Carolina Administrative Code (NCAC).
Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or before
filing with OAH for publication in the NCAC.
TEMPORARY RULES
Under certain emergency conditions, agencies may issue ten
rary rules. Within 24 hours of submission to OAH, the Codifn
Rules must review the agency's written statement of findings of
for the temporary rule pursuant to the provisions in G.S. 150B-21
the Codifier determines that the findings meet the criteria in
150B-21.1, the rule is entered into the NCAC. If the Cod
determines that the findings do not meet the criteria, the rule is retu
to the agency. The agency may supplement its findings and resul
the temporary rule for an additional review or the agency may resp
that it will remain with its initial position. The Codifier, thereafter,
enter the rule into the NCAC. A temporary rule becomes effe<
either when the Codifier of Rules enters the rule in the Code or or
sixth business day after the agency resubmits the rule without cha
The temporary rule is in effect for the period specified in the rule or
days, whichever is less. An agency adopting a temporary rule n
begin rule-making procedures on the permanent rule at the same t
the temporary rule is filed with the Codifier.
NORTH CAROLINA ADMINISTRATIVE CODE
The North Carolina Administrative Code (NCAC) is a compila
and index of the administrative rules of 25 state agencies arid
occupational licensing boards. The NCAC comprises approxima
15,000 letter size, single spaced pages of material of which appr<
mately 35% is changed annually. Compilation and publication of
NCAC is mandated by G.S. 150B-21.18.
The Code is divided into Titles and Chapters. Each state agenc
assigned a separate title which is further broken down by chapt
Title 21 is designated for occupational licensing boards.
The NCAC is available in two formats.
(1) Single pages may be obtained at a minimum cost of I
dollars and 50 cents ($2.50) for 10 pages or less, plus fift
cents ($0.15) per each additional page.
(2) The full publication consists of 53 volumes, totaling
excess of 15,000 pages. It is supplemented monthly «
replacement pages. A one year subscription to the
publication including supplements can be purchased
seven hundred and fifty dollars ($750.00). Individual v
umes may also be purchased with supplement service. 1
newal subscriptions for supplements to the initial publicat
are available.
Requests for pages of rules or volumes of the NCAC should
directed to the Office of Administrative Hearings.
CITATION TO THE NORTH CAROLINA
REGISTER
The North Carolina Register is cited by volume, issue, p<
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volu
1 , Issue 1 , pages 101 through 201 ofthe North Carolina Registerissv
on April 1, 1986.
FOR INFORMATION CONTACT: Office of Administra-tive
Hearings, ATTN: Rules Division, P.O. Drawer 27447,
Raleigh, North Carolina 2761 1-7447, (919) 733-2678.
NORTH
CAROLINA
REGISTER
Office of Administrative Hearings
P. O. Drawer 27447
Raleigh, North Carolina 27611-7447
(919) 733-2678
ISSUE CONTENTS
I. EXECUTIVE ORDERS
Executive Orders 69-71 1883
II. IN ADDITION
Tax Review Board 1885
ID. PROPOSED RULES
Cultural Resources
State Library, Division of 1889
Environment, Health, and
Natural Resources
Environmental Management .... 1899
Wildlife Resources 1900
Human Resources
Aging, Division of 1890
Medical Assistance 1891
Licensing Board
Architecture, Board of 1905
Secretary of State
Securities Division 1904
Julian Mann III,
Director
James R. Scarcella Sr.,
Deputy Director
Molly Masich,
Director ofAPA Services
Staff:
Ruby Creech,
Publications Coordinator
Teresa Kilpatrick,
Editorial Assistant
Jean Shirley,
Editorial Assistant
This publication is printed on permanent,
acid-free paper in compliance with
G.S. 125-11.13.
IV. LIST OF RULES CODIFIED 1917
V. RRC OBJECTIONS 1923
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions 1927
Text of Selected Decisions
94 DOA 0516 1943
94 OSP 0655 1949
VII. CUMULATrVE INDEX 1959
NORTH CAROLINA REGISTER
Publication Schedule
(November 1994 - September 1995)
Volume
and
Issue
Number
Issue
Date
Last Day
for
Filing
Last Day
for Elec-tronic
Filing
Earliest
Date for
Pubbc
Hearing
15 days
from
notice
* End of
Required
Comment
Period
30 days
from
notice
Last Day
to Submit
toRRC
** Earliest
Effective
Date
9:15 11/01/94 10/11/94 10/18/94 11/16/94 12/01/94 12/20/94 02/01/95
9:16 11/15/94 10/24/94 10/31/94 11/30/94 12/15/94 12/20/94 02/01/95
9:17 12/01/94 11/07/94 11/15/94 12/16/94 01/03/95 01/20/95 03/01/95
9:18 12/15/94 11/22/94 12/01/94 12/30/94 01/17/95 01/20/95 03/01/95
9:19 01/03/95 12/08/94 12/15/94 01/18/95 02/02/95 02/20/95 04/01/95
9:20 01/17/95 12/21/94 12/30/94 02/01/95 02/16/95 02/20/95 04/01/95
9:21 02/01/95 01/10/95 01/18/95 02/16/95 03/03/95 03/20/95 05/01/95
9:22 02/15/95 01/25/95 02/01/95 03/02/95 03/17/95 03/20/95 05/01/95
9:23 03/01/95 02/08/95 02/15/95 03/16/95 03/31/95 04/20/95 06/01/95
9:24 03/15/95 02/22/95 03/01/95 03/30/95 04/17/95 04/20/95 06/01/95
10:1 04/03/95 03/13/95 03/20/95 04/18/95 05/03/95 05/22/95 07/01/95
10:2 04/17/95 03/24/95 03/31/95 05/02/95 05/17/95 05/22/95 07/01/95
10:3 05/01/95 04/07/95 04/17/95 05/16/95 05/31/95 06/20/95 08/01/95
10:4 05/15/95 04/24/95 05/01/95 05/30/95 06/14/95 06/20/95 08/01/95
10:5 06/01/95 05/10/95 05/17/95 06/16/95 07/03/95 07/20/95 09/01/95
10:6 06/15/95 05/24/95 06/01/95 06/30/95 07/17/95 07/20/95 09/01/95
10:7 07/03/95 06/12/95 06/19/95 07/18/95 08/02/95 08/21/95 10/01/95
10:8 07/14/95 06/22/95 06/29/95 07/31/95 08/14/95 08/21/95 10/01/95
10:9 08/01/95 07/11/95 07/18/95 08/16/95 08/31/95 09/20/95 11/01/95
10:10 08/15/95 07/25/95 08/01/95 08/30/95 09/14/95 09/20/95 11/01/95
10:11 09/01/95 08/11/95 08/18/95 09/18/95 10/02/95 10/20/95 12/01/95
10:12 09/15/95 08/24/95 08/31/95 10/02/95 10/16/95 10/20/95 12/01/95
This table is published as a public service, and the computation of time periods are not to be deemed binding
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule
6.
* An agency must accept comments for at least 30 days after the proposed text is published or until the date
of any public hearing, whichever is longer. See G.S. 15OB-21.2(f) for adoption procedures.
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above,
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st day of the next calendar
month.
Revised 10/94
EXECUTIVE ORDERS
EXECUTIVE ORDER NO. 69
GOVERNOR'S COUNCIL ON
CHILDREN, YOUTH, AND
FAMHJES
WHEREAS, the State of North Carolina should
promote and encourage collaboration and collabo-rative
planning and delivery of services among
State agencies that serve the needs of children and
families;
WHEREAS, the State of North Carolina should
make more effective use of existing federal and
state resources and programs;
WHEREAS, the State of North Carolina should
streamline government, including the delivery of
services and eliminate duplication; and
WHEREAS, the State of North Carolina should
promote and enhance state-level leadership in
achieving these goals;
NOW, THEREFORE, by the power vested in me
as Governor by the Constitution and laws of the
State of North Carolina, IT IS ORDERED:
Section 1. Establishment.
The Governor's Council on Children, Youth, and
Families is hereby established.
Section 2. Duties.
(a) The Governor's Council on Children, Youth,
and Families shall:
(i) Provide state-level leadership on issues
affecting children, youth, and families,
including children with special needs;
(ii) Foster collaboration and coordination
between and among the many state
agencies with responsibility for provid-ing
services to children, youth, and
families;
(iii) Help develop and carry out a unified
and comprehensive long-range
children's and families' agenda; and
(iv) Promote accountability for achieving
the State's goals in a timely and
effective manner.
(b) The Council shall meet biannually and report
to the Governor on its progress in meeting the
intent and purpose set forth in this Executive
Order. The Governor may convene the Council at
other times during the year as necessary to achieve
these goals.
(c) The Governor shall chair the Council. The
Governor shall appoint a Vice-Chair of the Coun-cil,
who shall chair the Council in his absence.
(d) The Governor shall set the agenda for the
Council's meetings and shall take into consider-ation
its reports in setting policy for children,
youth, and families.
(e) The Council may establish such committees,
task forces, or other working groups as are neces-sary
to assist in performing its duties. The Coun-cil
may invite non-members to serve on such
groups.
(f) Existing executive commissions, councils,
and advisory committees with responsibility for
issues affecting children, youth, and families shall
advise and assist the Council in performing its
duties and responsibilities.
Section 3. Membership.
(a) The Council shall consist of the following
members or their designees:
(i) The Governor's Senior Education Advi-sor;
(ii) The Secretary of Environment, Health,
and Natural Resources;
(iii) The Secretary of Human Resources;
(iv) The Secretary of Cultural Resources;
(v) The Secretary of Commerce;
(vi) The Secretary of Transportation; and
(vii) The Secretary of Administration.
(b) The following individuals shall be invited to
serve as members of the Council and may appoint
a designee:
(i) The Lieutenant Governor;
(ii) The Superintendent of Public Instruc-tion;
(iii) The Chair of the State Board of Educa-tion;
(iv) The Commissioner of Labor;
(v) The President of the North Carolina
Community College System;
(vi) The President of the University of
North Carolina;
(vii) The Director of the Administrative
Office of the Courts;
(viii) The Chair of the North Carolina Part-nership
for Children, Inc.;
(ix) The Chairs of the House of Representa-tives
and Senate appropriations subcom-mittees
for human resources (one from
each body); and
(x) The Chairs of the House of Representa-tives
and Senate substantive committees
with responsibility for human services
9:22 NORTH CAROLINA REGISTER February 15, 1995 1883
EXECUTIVE ORDERS
programs affecting children, youth and
families (one from each body).
Section 4. Staff Assistance.
The Department of Human Resources shall
provide clerical support and other services re-quired
by the Council.
This order shall be effective immediately.
Done in the City of Raleigh this the 24th day of
January, 1995.
EXECUTIVE ORDER NO. 70
REISSUING EXECUTIVE ORDER
NO. 37, CITIZEN ACCESS TO
PUBLIC RECORDS MAINTAINED
BY STATE GOVERNMENT
WHEREAS, Executive Order No. 37, signed
January 28, 1994, expired October 28, 1994; and
WHEREAS, Executive Order No. 37 implement-ed
a trial period for the Departments of Adminis-tration
and Transportation to develop an electronic
register of public information; and
WHEREAS, the Information Resources Manage-ment
Commission has reviewed the implementation
of Executive Order No. 37 and has recommended
that the trial period be extended.
NOW, THEREFORE, by the power vested in me
as Governor by the Constitution and laws of the
State of North Carolina, IT IS ORDERED:
Executive Order No. 37, Citizen Access to
Public Records Maintained by State Government,
is hereby reissued, without changes, until July 1,
1995. The IRMC is requested to make further
recommendations prior to the expiration of this
Order.
This Order shall be effective immediately.
Done in the City of Raleigh this the 25th day of
January, 1995.
EXECUTIVE ORDER NO. 71
EXTENDING EXECUTIVE ORDERS
2, 6, 9, 10, 11, 15, 16, 17 AND 19
By the power vested in me as Governor by the
Constitution and laws of the State of North Caroli-na,
IT IS ORDERED:
The following Executive Orders are hereby
extended:
A. Executive Order No. 2, Small Business
Council;
B. Executive Order No. 6, Entrepreneurial
Development Board;
C. Executive Order No. 9, Commission foi
a Competitive North Carolina;
D. Executive Order No. 10, Quality Leader
ship Awards Council;
E. Executive Order No. 11, Governor's
Council of Fiscal Advisors;
F. Executive Order No. 15, Coordinating
Committee on the Americans with Dis-abilities
Act;
G. Executive Order No. 16, The Geographic
Information Coordinating Council;
H. Executive Order No. 17, North Carolina
Emergency Response Commission; and
I. Executive Order No. 19, Center for the
Prevention of School Violence.
This Order shall be effective immediately and
shall expire two years from this day.
Done in the City of Raleigh this the 26th day of
January, 1995
1884 NORTH CAROLINA REGISTER February 15, 1995 9:22
IN ADDITION
STATE OF NORTH CAROLINA
COUNTY OF WAKE
[N THE MATTER OF:
rhe Proposed Assessment of corporate income
tax for the taxable years of 1988, 1989, 1990
assessed against BellSouth Telecommunications,
Inc. (formerly Southern Bell Telephone and
Telegraph Company).
BEFORE THE
TAX REVIEW BOARD
ADMINISTRATIVE
DECISION NUMBER: 287
THIS MATTER was heard before the Tax Review Board on 9 November 1994 in the City of Raleigh,
Wake County, North Carolina. It involves an appeal by BellSouth Telecommunications, Inc. (formerly
Southern Bell Telephone and Telegraph Company), (hereinafter "Taxpayer") from the Final Decision of
Michael A. Hannah, Assistant Secretary for Legal and Administrative Services (hereinafter "Assistant
Secretary") entered on 20 April 1994, sustaining a proposed assessment of corporate income tax for the
taxable years of 1988, 1989 and 1990.
Chairman Harlan E. Boyles presided over the hearing with acting member, the Honorable Hugh
Wells, Chairman, Utilities Commission and duly appointed member, Jeff D. Batts, Attorney at Law
participating.
Joseph D. Joyner, Jr. and C. Wells Hall, III, Attorneys at Law, appeared of behalf of the Taxpayer;
Kay Linn Miller, Associate Attorney General, appeared on behalf of the Department of Revenue.
AND IT APPEARING TO THE BOARD AS FOLLOWS: that the findings of fact made by the
Assistant Secretary were supported by competent, material and substantial evidence in the record; that based
upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings
of fact; therefore based upon the findings of fact and conclusions of law, the decision of the Assistant
Secretary should be confirmed.
IT IS THEREFORE ORDERED, that the Final Decision of the Assistant Secretary is confirmed in
every respect.
Entered this the 20th day of January, 1995.
TAX REVIEW BOARD
Harlan E. Boyles, Chairman
State Treasurer
Hugh Wells, Ex Officio Member
Chairman Utilities Commission
Jeff D. Batts, Appointed Member
9:22 NORTH CAROLINA REGISTER February 15, 1995 1885
IN ADDITION
STATE OF NORTH CAROLINA
BEFORE THE
TAX REVIEW BOARD
COUNTY OF WAKE
IN THE MATTER OF:
The Proposed Assessment of corporate
income tax for the taxable years ended 30 ADMINISTRATIVE
June 1988 and 30 June 1989 assessed DECISION NUMBER: 288
against J. W. Cook & Sons, Inc.
THIS MATTER was heard before the Tax Review Board on 9 November 1994 in the City o
Raleigh, Wake County, North Carolina. It involves an appeal by J. W. Cook & Sons, Inc., (hereinafte
"Taxpayer") from the Final Decision of the Deputy Secretary of Revenue (hereinafter "Deputy Secretary"
entered on 28 August 1992, sustaining a proposed assessment of corporate income tax for the taxable year
ended 30 June 1988 and 30 June 1989.
Chairman Harlan E. Boyles presided over the hearing with acting member, the Honorable Hug!
Wells, Chairman, Utilities Commission and duly appointed member, Jeff D. Batts, Attorney at Law
participating.
William P. Pinna, Attorney at Law, appeared of behalf of the Taxpayer; Kay Linn Miller, Associate
Attorney General, appeared on behalf of the Department of Revenue.
AND IT APPEARING TO THE BOARD AS FOLLOWS: that the findings of fact made by the
Deputy Secretary were supported by competent, material and substantial evidence in the record; that based
upon the findings of fact, the Deputy Secretary's conclusions of law were fully supported by the findings of
fact; therefore based upon the findings of fact and conclusions of law, the decision of the Deputy Secretary
should be confirmed.
IT IS THEREFORE ORDERED, that the Final Decision of the Deputy Secretary is confirmed in
every respect.
Entered this the 20th day of January, 1995.
TAX REVIEW BOARD
Harlan E. Boyles, Chairman
State Treasurer
Hugh Wells, Ex Officio Member
Chairman Utilities Commission
Jeff D. Batts, Appointed Member
1886 NORTH CAROLINA REGISTER February 15, 1995 9:22
IN ADDITION
5TATE OF NORTH CAROLINA
COUNTY OF WAKE
N THE MATTER OF:
rhe Proposed Assessment of additional sales
ind use tax for the period of January 1 , 1 986
hrough February 28, 1990 by the North
Carolina Secretary of Revenue assessed against
Robert L. Sutphen, d/b/a/ Southern Straw
BEFORE THE
TAX REVIEW BOARD
ADMINISTRATIVE
DECISION NUMBER: 289
THIS MATTER was heard before the Tax Review Board (hereinafter "Board") on 13 September 1994
n the City of Raleigh, Wake County, North Carolina. It involves an appeal by Robert L. Sutphen, d/b/a/
Southern Straw (hereinafter "Taxpayer") from the decision of the Michael A. Hannah, Assistant Secretary for
Legal and Administrative Services (hereinafter "Assistant Secretary") entered on 21 March 1994 sustaining
i proposed assessment of sales and use tax, plus penalties and interest, for the period of January 1, 1986
hrough February 28, 1990.
Chairman Harlan E. Boyles presided over the hearing with acting member, the Honorable Hugh
Wells, Chairman Utilities Commission and duly appointed member, Jeff D. Batts, Attorney at Law
participating.
Robert L. Sutphen appeared pro se; Kay Linn Miller, Associate Attorney General, appeared on behalf
of the Department of Revenue.
ISSUE
Under G.S. § 105-241.2, the Tax Review Board is granted jurisdiction to hear appeals timely filed
by a taxpayer regarding administrative review of the taxpayer's liability for the tax or additional tax assessed
by the Secretary. The issue considered is:
1. Did the Taxpayer file a timely notice of intent to file a petition for review and a timely
petition requesting review with the Tax Review Board?
Under the guidelines of G.S. § 105-241. 2(a), the Taxpayer must take the following action in order
to obtain administrative review:
1. Within 30 days after the Secretary's final decision is issued, file with the
Tax Review Board, with a copy to the Secretary, notice of intent to file a
petition for review.
2. Within 60 days after the Secretary's final decision is issued, file with the
Tax Review Board, with a copy to the Secretary, a petition requesting
administrative review and stating in concise terms the grounds upon which
review is sought.
THE TAX REVIEW BOARD CONSIDERED THE FOLLOWING FACTS AND DOCUMENTS
FILED IN THIS MATTER:
9:22 NORTH CAROLINA REGISTER February 15, 1995 1887
IN ADDITION
1. On 21 March 1994, the Secretary's final decision was mailed to the Taxpayer.
2. On 19 May 1994, Taxpayer's attorney wrote the Board requesting review of the case.
3. On 26 May 1994, the Board's Executive Secretary acknowledged receipt of the 19 May 199*
letter as an untimely notice of intent to file a petition for review.
4. On 16 August 1994, Taxpayer filed a letter with the Board setting forth his reasons foi
requesting administrative review.
BASED UPON THE FOREGOING FACTS, THE TAX REVIEW BOARD CONCLUDES AS A
MATTER OF LAW:
1. The time limits specified in G.S. 105-241. 2(a) are jurisdictional in nature; the Board has no
authority to consider petitions not filed within the time prescribed by law.
2. Because the Taxpayer did not file a petition within the time prescribed by 105-241. 2(a), the
Taxpayer's appeal must be dismissed.
IT IS THEREFORE ORDERED that the Taxpayer's appeal be, and is hereby, DISMISSED.
Entered this 27th day of January, 1 995
.
TAX REVIEW BOARD
Harlan E. Boyles, Chairman
State Treasurer
Hugh Wells, Ex Officio Member
Chairman Utilities Commission
Jeff D. Batts, Appointed Member
1888 NORTH CAROLINA REGISTER February 15, 1995 9:22
IN ADDITION
TITLE 7 - DEPARTMENT OF
CULTURAL RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that the Department of Cultural Re-sources,
Division of State Library intends to amend
rule cited as 7 NCAC 2E . 0301.
1 he proposed effective date of this action is May
1, 1995.
Instructions on How to Demand a Public Hearing
(must be requested in writing within 15 days of
notice): A public hearing may be requested by
sending a written request to Caroline Shepard,
State Library of North Carolina, 109 E. Jones St.,
Raleigh, NC 27601-2807, fax (919) 733-8748.
Reason for Proposed Action: This Rule change
is being made to be more responsive to units of
local government by formally adopting the special
provision that was included in the Current Opera-tions
Appropriations Act of 1993 (Senate Bill 27,
Section 38).
{comment Procedures: Comments may be submit-ted
in writing to Caroline Shepard, State Library
of North Carolina, 109 E. Jones St. , Raleigh, NC
27601-2807, fax (919) 733-8748.
CHAPTER 2 - DIVISION OF
STATE LIBRARY
SUBCHAPTER 2E - LIBRARY
DEVELOPMENT SERVICES
SECTION .0300 - ALLOCATION
OF STATE AID TO PUBLIC LIBRAREES
0301 QUALD7ICATIONS FOR GRANTS
Libraries requesting funding from the aid to
public libraries fund must meet the following
requirements:
(1) Be legally established as required by
North Carolina statutes.
(2) Provide library services easily available
without discrimination to all residents of
the political subdivision supporting the
library.
(3) Employ a director having a valid North
Carolina public librarian certificate and
successful experience as a public librarian
(4)
(5)
or administrator.
Secure operational funds from local
government sources at least equal to the
amount budgeted the previous year. A
grant to a local library system from the
Aid to Public Libraries Fund shall not be
terminated but shall be reduced propor-tionately
by the Department of Cultural
Resources if the local funding for a pub-lic
library was reduced by the local gov-erning
body as part of an overall general
budgetary reduction reflecting local eco-nomic
conditions and local government
fiscal constraints. State funds shall not
replace local funds appropriated for
public library operations.
Expend funds as authorized in the adopt-ed
budget. Any library having an unen-cumbered
operational balance of more
than 17 percent of the previous year's
operating receipts will have the difference
deducted from its state allocation.
Obtain aggregate operational funds from
local sources at least equaling state aid.
Pay salaries for professional positions
funded from state aid that are no less
than the scale required by the Division of
State Library.
Obtain an annual audit of library ac-counts
by a certified public accountant
and submit a copy of this audit to the
Division of State Library.
Submit a copy of bylaws and personnel
policies to the Division of State Library.
Compile an assessment of the library
needs of the community, prepare and
annually revise a long-range plan of
service, and submit copies of needs as-sessment
and long-range plans of service
to the Division of State Library.
Submit a copy of the agreement establish-ing
the regional or county library, if
composed of more than one local govern-mental
unit.
Meet the following stipulations when
establishing a new library or withdrawing
from a larger system:
qualify for state aid on the first day of
the fiscal year,
operate successfully during that year,
apply for state aid after the year of
successful operation.
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(a)
(b)
(c)
Statutory Authority G.S. 125-7; 143B-10.
9:22 NORTH CAROLINA REGISTER February 15, 1995 1889
PROPOSED RULES
TITLE 10 - DEPARTMENT OF
HUMAN RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that the Division of Aging intends to
amend rules cited as 10 NCAC 22J .0308; 22
R
.0201 and .0202.
1 he proposed effective date of this action is May
1, 1995.
1 he public hearing will be conducted at 2:00
p.m. on March 3, 1995 at the Division of Aging,
693 Palmer Drive, Room 127, Raleigh, NC.
Jxeasonfor Proposed Action:
10 NCAC 22] .0308 - Clarification of who may
serve as in-home aides for the elderly.
10 NCAC 22R .0201 - .0202 - Clarification of
boards of commissioners and area agencies on
aging responsibilities through the Home and
Community Care Block Grant for Older Adults.
(comment Procedures: Written comments will be
received by the Director of the Division of Aging
through March 18, 1995. Verbal comments will
be heard at the public hearing.
CHAPTER 22 - AGING
SUBCHAPTER 22J - IN-HOME AIDE
SERVICES FOR OLDER ADULTS
SECTION .0300 - SERVICE PROVISION
.0308 SELECTION OF AIDES
The following persons shall be allowed to serve
as in home aides:
W-m-
Non re latives who are 4l8a-years-oetfiage or
older who are qualified to perform tho
tasks needed by the olient.
Relatives of the client, who for this pur
poso are parent, spouse, child or sibling,
who are 18 years of age or older and
who give up employment or tho opportu
nity for employment in order to perform
the
—
service and—whe
—
are qualified to
perform the tasks needed by the olient.
Note:—Persons who cannot serve as in home aides
are those under 18 years of age ; those who are not
qualified to perform the tasks needed by the olient;
and those who are relatives of the client, who for
this purpose are parent, spouse, ohild, or oiblinj
who are unemployed or who do not have to giv
up employment in order to provide tho oorvioor
Agencies must have written policy regarding wh
may serve as in-home aids. The written polic
shall include, at a minimum, the following require
ments about who may serve as in-home aides:
(1) persons 18 years of age or older o
emancipated minors; and
(2) persons who are qualified to perform tb
tasks needed by the client; and
(3) whether or not the agency allows thi
hiring of relatives to serve as the client'
in-home aide. If the agency allows
\
relative to be the client's in-home aide
the policy must also address thj
following requirements:
fa) that relatives of the client. for thi:
ill
iiil
liiil m
£b)
(4}
purpose are either:
a parent,
spouse,
child,
or sibling of the client including stej
relations of the client for any o:
those; and
that the relative must have given u
employment or the opportunity foi
employment in order to perform the
tasks needed by the client; and
any other hiring guidelines established by
the agency.
Statutory Authority
143B-181.9A.
G.S. 1 43B-181.1(c)
SUBCHAPTER 22R - HOME AND
COMMUNITY CARE BLOCK GRANT
FOR OLDER ADULTS
SECTION .0200 - BASIS FOR GRANTING
BLOCK GRANT FUNDS TO COUNTIES
.0201 DEFINITIONS
(a) "County Block Grant Advisory Committee"
means a committee, appointed annually by the
Board of County Commissioners, that represents a
broad range of aging interest in the county. The
committee serves to build local consensus for the
County Funding Plan and to function as a resource
for the County Lead Agency for Planning and
Coordination by obtaining input from service
provider interests, and older consumers and their
families. A representative of the Area Agency on
Aging shall be appointed to the committee when
the Area Agency on Aging is not designated as the
1890 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
County Lead Agency for Planning and
Coordination, as specified in K) NCAC 22R
.0201(c).
(b) "County Funding Plan" means the format
developed by the Division of Aging in which
counties identify the County Lead Agency for
Planning and Coordination, service providers,
services, and budgetary data for the provision of
Home and Community Care Block Grant for Older
Adults services in the county during the State
Fiscal Year.
(c) "County Lead Agency for Planning and
Coordination" means a public or private
non-private agency or office which is designated
annually by the Board of County Commissioners
for the purpose of developing the County Funding
Plan for the provision of services through the
Block Grant. County Funding Plan development
responsibilities include directing the work of the
County Block Grant Advisory Committee,
facilitating a public hearing for the County
Funding Plan prior to approval by submission to
the Chairman of the Board of Commissioners, and
ensuring that the approved County Funding Plan
meets all requirements as specified by the Division
of Aging prior to submission for approval to the
Area Agency on Aging.
Statutory Authority G. S.
143B-181.1(c).
143B-181.1(a)(ll);
.0202 COUNTY FUNDING PLANS
(a) The County Lead Agency for Planning and
Coordination shall provide the County Budget
Officer with a preliminary County Funding Plan
which, at a minimum, specifies Home and
Community Care Block Grant for Older Adults
services, funding levels, and required local
matching amounts by April 30 of each year.
(b) Area Agencies on Aging shall grant Home
and Community Care Block Grant for Older
Adults funding to Counties on the basis of a the
recommended County Funding Plan that has been
approved submitted by the Chairman of the Board
of Commissioners and submitted to the Area
Agenoy on Aging . Area Agencies on Aging shall
receive the County Funding Plan and, upon
approval, shall grant funding to the County on the
basis of the Plan.
(c) The approved County Funding Plan., as
approved by the Area Agency on Aging, shall be
wholly a part of the Grant Agreement between the
County and the Area Agency on Aging for the
provision of aging services through the Home and
Community Care Block Grant for Older Adults.
Statutory Authority G.S. 143B-181.1(a)(ll);
143B-181.1(c).
* * *
ISotice is hereby given in accordance with G.S.
150B-21.2 that the DHR - Division of Medical
Assistance intends to amend rules cited as 10
NCAC 26H .0102 and .0104.
1 he proposed effective date of this action is May
1, 1995.
1 he public hearing will be conducted at 1:30
p.m. on March 17, 1995 at the Division of Medi-cal
Assistance, 1985 Umstead Drive, Room 132,
Raleigh, N. C
MXeason for Proposed Action: To end cost settle-ment
for OSHA Bloodborne costs and to begin
payment of non-ambulance medically necessary
transportation cost.
Lsomment Procedures: Written comments con-cerning
this amendment must be submitted by
March 1 7, 1995 to: Division of Medical Assis-tance,
1985 Umstead Drive, Raleigh, N.C., 27603,
ATTN: Portia Rochelle, 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
SUBCHAPTER 26H - REIMBURSEMENT
PLANS
SECTION .0100 - REIMBURSEMENT FOR
NURSING FACILITY SERVICES
.0102 RATE SETTING METHODS
(a) A rate for skilled nursing care and a rate for
intermediate nursing care is determined annually
for each facility to be effective for dates of service
for a twelve month period beginning each October
1 . Each patient will be classified in one of the two
categories depending on the services needed.
Rates are derived from either filed, desk, or field
audited cost reports for a base year period to be
selected by the state. Rates developed from filed
cost reports may be retroactively adjusted if there
is found to exist more than a two percent differ-
9:22 NORTH CAROLINA REGISTER February 15, 1995 1891
PROPOSED RULES
ence between the filed direct per diem cost and
either the desk audited or field audited direct per
diem cost for the same reporting period. Cost
reports are filed and audited under provisions set
forth in 10 NCAC 26H .0104. The minimum
requirements of the 1987 OBRA are met by these
provisions.
(b) Each prospective rate consists of two compo-nents:
a direct patient care rate and an indirect rate
computed and applied as follows:
(1) The direct rate is based on the Medic-aid
cost per day incurred in the follow-ing
cost centers:
(A) Nursing,
(B) Dietary or Food Service,
(C) Laundry and Linen,
(D) Housekeeping,
(E) Patient Activities,
(F) Social Services,
(G) Ancillary Services (includes several
cost centers).
(2) To compute each facility's direct rate
for skilled care and intermediate care,
the direct base year cost per day is
increased by adjustment factors for
price changes as set forth in Rule
.0102(c).
(A) A facility's direct rates cannot exceed
the maximum rates set for skilled
nursing or intermediate nursing care.
However, the Division of Medical
Assistance may negotiate direct rates
that exceed the maximum rate for
ventilator dependent patients.
Payment of such special direct rates
shall be made only after specific prior
approval of the Division of Medical
Assistance.
(B) A standard per diem amount will be
added to each facility's direct rate,
including facilities that are limited to
the maximum rates, for the projected
statewide average per diem costs of
the salaries paid to replacement nurse
aides for those aides in training and
testing status and other costs deemed
by HCFA to be facility costs related
to nurse aide training and testing.
The standard amount is based on the
product of multiplying the average
hourly wage, benefits, and payroll
taxes of replacement nurse aides by
the number of statewide hours
required for training and testing of all
aides divided by the projected total
patient days.
(3) If a facility did not report any costs foi
either skilled or intermediate nursing
care in the base year, the state average
direct rate will be assigned as
determined in Rule .0102(d) of thi
Section for the new type of care.
(4) The direct maximum rates are
developed by ranking base-year per
diem costs from the lowest to the
highest in two separate arrays, one foi
skilled care and one for intermediate
care. Each array is weighted by total
patient days. The per diem cost at the
80th percentile in each array is selected
as the base for the maximum rate. The
base cost in each array is adjusted foi
price changes as set forth in Rule
.0102(c) of this Section to determine
the maximum statewide direct rates for
skilled care and intermediate care.
(5) Effective October 1, 1990, the direct
rates will be adjusted as follows:
(A) A standard per diem amount will be
added to each facility's skilled ar.J
intermediate rate to account for the
combined expected average additional
costs for the continuing education of
nurses' aides; the residents'
assessments, plans of care, and
charting of nursing hours for each
patient; personal laundry and hygiene
items; and other non-nursing staffing
requirements. The standard amount is
equal to the sum of:
(i) the state average annual salary,
benefits, and payroll taxes for one
registered nurse position
multiplied by the number of
facilities in the state and divided
by the state total of patient days;
(ii) the total costs of personal laundry
and hygiene items divided by the
total patient days as determined
from the FY 1989 cost reports of
a sample of nursing facilities
multiplied by the annual
adjustment factor described in
Rule .0102(c)(4)(B) of this
Section; and
(iii) the state average additional
pharmacy consultant costs divided
by 365 days and then divided by
the average number of beds per
facility.
1892 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
(B) A standard amount will be added to
the intermediate rate of facilities that
were certified only for intermediate
care prior to October 1, 1990. This
amount will be added to account for
the additional cost of providing eight
hours of RN coverage and 24 hours
of licensed nursing coverage. The
standard amount is equal to the state
average hourly wage, benefits and
payroll taxes for a registered nurse
multiplied by the 16 additional hours
of required licensed nursing staff
divided by the state average number
of beds per nursing facility. A lower
amount will be added to a facility
only if it can be determined that the
facility's intermediate rate prior to
October 1, 1990 already includes
licensed nursing coverage above eight
hours per day. The add-on amount in
such cases would be equal to the
exact additional amount required to
meet the licensed nursing
requirements.
(C) The standard amounts in
Subparagraphs (2)(B), (5)(A), and
(5)(B) of this Rule, will be retained in
the rates of subsequent years until the
year that the rates are derived from
the actual cost incurred in the cost
reporting year ending in 1991 which
will reflect each facility's actual cost
of complying with all OBRA '87
requirements.
(6) Upon completion of any cost reporting
year any funds received by a facility
from the direct patient care rates which
have not been spent on direct patient
care costs as defined herein are repaid
to the State. This will be applied by
comparing a facility's total Medicaid
direct costs with the combined direct
rate payments received for skilled and
intermediate care. Costs in excess of a
facility's total prospective rate payments
are not reimbursable.
(7) The indirect rate is intended to cover
the following costs of an efficiently and
economically operated facility:
(A) Administrative and General,
(B) Operation of Plant and Maintenance,
(C) Property Ownership and Use,
(D) Mortgage Interest.
(8) Effective for dates of service beginning
October 1 , 1 984 and ending September
30, 1985 the indirect rates are fourteen
dollars and sixty cents ($14.60) for
each SNF day of care and thirteen
dollars and fifty cents ($13.50) for each
ICF day of care. These rates represent
the first step in a two step transition
process from the different SNF and ICF
indirect rates paid in 1983-84 and the
nearly equal indirect rates that will be
paid in subsequent years under this plan
as provided in this Rule.
(9) Effective for dates of service beginning
October 1, 1985 and annually thereafter
per diem indirect rates will be
computed as follows:
(A) The average indirect payment to all
facilities in the fiscal year ending
September 30, 1983 [which is thirteen
dollars and two cents ($13.02)] will
be the base rate.
(B) The base rate will be adjusted for
estimated price level changes from
fiscal year 1983 through the year in
which the rates will apply in
accordance with the procedure set
forth in Rule .0102(c) of this Section
to establish the ICF per diem indirect
rate.
(C) The ICF per diem indirect rate shall
be multiplied by a factor of 1.02 to
establish the SNF per diem indirect
rate. This adjustment is made to
recognize the additional administrative
expense incurred in the provision of
SNF patient care.
(10) Effective for dates of service beginning
October 1, 1989, a standard per diem
amount will be added to provide for the
additional administrative costs of
preparing for and complying with all
nursing home reform requirements.
The standard amount is based on the
average annual salary, benefits and
payroll taxes of one clerical position
multiplied by the number of facilities in
the state divided by the state total of
patient days.
(11) Effective for dates of service beginning
October 1, 1990, the indirect rate will
be standard for skilled and intermediate
care for all facilities and will be
determined by applying the 1990-91
indirect cost adjustment factors in Rule
.0102(c) of this Section to the indirect
1:22 NORTH CAROLINA REGISTER February 15, 1995 1893
PROPOSED RULES
rate paid for SNF during the year
beginning October 1, 1989. Thereafter
the indirect rate will be adjusted
annually by the indirect cost adjustment
factors.
(c) Adjustment factors for changes in the price
level. The rate bases established in Rule .0102(b),
are adjusted annually to reflect increases or
decreases in prices that are expected to occur from
the base year to the year in which the rate applies.
The price level adjustment factors are computed
using aggregate base year costs in the following
manner:
(1) Costs will be separated into direct and
indirect cost categories.
(2) Costs in each category will be
accumulated into the following groups:
(A) labor,
(B) other,
(C) fixed.
(3) The relative weight of each cost group
is calculated to the second decimal
point by dividing the total costs of each
group (labor, other, and fixed) by the
total costs for each category (direct and
indirect).
(4) Price adjustment factors for each cost
group will be established as follows:
(A) Labor. The expected annual
percentage change in direct labor
costs as determined from a survey of
nursing facilities to determine the
average hourly wages for RNs, LPNs,
and aides paid in the current year and
projected for the rate year. The
percentage change for indirect labor
costs is based on the projected
average hourly wage of N.C. service
workers.
(B) Other. The expected annual change
in the implicit price deflator for the
Gross National Product as provided
by the North Carolina Office of State
Budget and Management.
(C) Fixed. No adjustment will be made
for this category, thus making the
factor zero.
(D) The weights computed in (c)(3) of this
Rule shall be multiplied times the
percentage change computed in
(c)(4)(A), (B) and (C) of this Rule.
These products shall be added
separately for the direct and indirect
categories.
(E) The sum computed for each category
in (c)(4)(D) of this Rule shall be the
price level adjustment factor for that
category of rates (direct or indirect)
for the coming fiscal year.
(F) However, for the rate period
beginning October 1, 1991 through
September 30, 1992 the forecast of
the N.C. Service Wages percent
applied to the 1991-92 Inpatient
Hospital and Intermediate Care
Facility for the Mentally Retarded
rates is applied to the Labor
component weight computed in
(c)(4)(A) of this Rule.
(G) For the rate period beginning October
1, 1991 through September 30, 1992
the direct adjustment factor
determined under (c)(4) of this Rule
will be applied to the direct rate
adjustments determined under (b)(2),
(b)(5)(A) and (b)(5)(B) of this Rule
(d) The skilled and intermediate direct patient
care rates for new facilities are established at the
lower of the projected costs in the provider's
Certificate of Need application inflated to the
current rate period or the average of industry base
year costs and adjusted for price changes as set
forth in Rule .0102(c) of this Section. A new
facility receives the indirect rate in effect at the
time the facility is enrolled in the Medicaid
program. In the event of a change of ownership,
the new owner receives the same rate of payment
assigned to the previous owner.
(e) Each out-of-state provider is reimbursed at
the lower of the appropriate North Carolina
maximum rate or the provider's payment rate as
established by the State in which the provider is
located. For patients with special needs who must
be placed in specialized out-of-state facilities, a
payment rate that exceeds the North Carolina
maximum rate may be negotiated.
(f) Specialized Service Rates:
(1) Head Injury Intensive Rehabilitation
Services.
(A) A single all-inclusive prospective per
diem rate combining both the direct
and indirect cost components may be
negotiated for nursing facilities that
specialize in providing intensive
rehabilitation services for head-injured
patients. The rate may exceed the
maximum rate applicable to other
Nursing Facility services. A facility
must specialize to the extent of
staffing at least 50 percent of its
1894 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
Nursing Facility licensed beds for
intensive head-injury rehabilitation
services. The facility must also be
accredited by the Commission for the
Accreditation of Rehabilitation
Facilities (CARF).
(B) A facility's initial rate is negotiated
based on budget projections of
revenues, allowable costs, patient
days, staffing and wages. A complete
description of the facility's medical
program must also be provided.
Rates in subsequent years are
determined by applying the average
annual skilled nursing care adjustment
factors to the rate in the previous
year, unless either the provider or the
State requests a renegotiation of the
rate within 60 days of the rate notice.
(C) Cost reports for this service must be
filed in accordance with the rules in
10 NCAC 26H .0104, but there will
be no cost settlements for any
differences between cost and
payments. Since it is appropriate to
include all financial considerations in
the negotiation of a rate, a provider
will not be eligible to receive separate
payments for return on equity as
defined in 10 NCAC 26H .0105.
(2) Ventilator Services.
(A) Ventilator services approved for
nursing facilities providing intensive
services for ventilator dependent
patients shall be reimbursed at higher
direct rates as described in
Subparagraph (b)(2)(A) of this Rule.
Ventilator services shall be paid by
combining the enhanced direct rate
with the nursing facility indirect rate
determined under Subparagraph
(b)(ll)of this Rule.
(B) A facility's initial direct rate shall be
negotiated based on budget
projections of revenues, allowable
costs, patient days, staffing and
wages. Rates in subsequent years
shall be determined by applying the
nursing facility direct adjustment
factor to the previous 12 month cost
report direct cost.
(C) Cost reports and settlements for this
service shall be in accordance with 10
NCAC 26H .0104 and return on
equity is allowed as defined in 10
NCAC 26H .0105.
(D) A single all-inclusive prospective per
diem rate combining both the direct
and indirect cost components may be
negotiated for nursing facilities that
specialize in providing intensive
services for ventilator-dependent
patients. The rate may exceed the
maximum rate applicable to other
Nursing Facility services. For
ventilator services, the only facilities
that shall be eligible for a combined
single rate are small freestanding
facilities with less than 21 Nursing
Facility Beds and that serve only
patients requiring ventilator services.
Ventilator services provided in larger
facilities shall be reimbursed at higher
direct rates as described in
Subparagraph (b)(2)(A) of this Rule.
(g) In addition to the prospective direct per diem
rates developed under this Section, effective July
-h
—
1992, an interim payment add on will be
applied to the total rate to cover the estimated ooet
required under Title 29, Part 1910, Subpart Z,
Section—1910.1030 of the Code of Federal
Regulations.—The interim rate will be subject to
final settlement reconciliation with reasonable coot
to meet the requirements of Part 1910. The final
settlement reoonoiliation will be effectuated during
the annual coot report settlement prooess.—An
interim rate add on to the prospective rate will be
allowed, subject to final settlement reoonoiliation,
in subsequent rate periods until adequate cost
history is available to include the cost of meeting
the requirements of Part 1910 in the prospective
rater Effective October J^ 1994 the bloodborne
pathogen cost required under Title 29, Part 1910,
Subpart 2^ Section 1910.0130 of the Code of
Federal Regulations shall be included in the
nursing facility's direct cost reimbursement. The
initial per diem amount shall be set at the lower of
the actual or eightieth percentile of bloodborne
pathogen costs incurred in fiscal year 1993.
(h) Religious Dietary Considerations.
(1) A standard amount may be added to a
nursing facility's skilled and
intermediate care rates, that may exceed
the maximum rates determined under
Paragraph (b) of this Rule, for special
dietary need for religious reasons.
(2) Facilities must apply to receive this
special payment consideration. In
applying, facilities must document the
reasons for special dietary consideration
NORTH CAROLINA REGISTER February 15, 1995 1895
PROPOSED RULES
for religious reasons and must submit
documentation for the increased dietary
costs for religious reasons. Facilities
must apply for this special benefit each
time rates are determined from a new
data base. Fifty or more percent of the
patients in total licensed beds must
require religious dietary consideration
in order for the facility to qualify for
this special dietary rate add-on.
(3) The special dietary add-on rate may not
exceed more than a 30 percent increase
in the average skilled and intermediate
care dietary rates calculated for the
80th percentile of facilities determined
under Subparagraph (b)(4) of this Rule
and adjusted for annual inflation
factors. This maximum add-on will be
adjusted by the direct rate inflation
factor each year until a new data base is
used to determine rates.
(4) This special dietary add-on rate will
become part of the facility's direct rates
to be reconciled in the annual cost
report settlement.
£i} Effective October J^ 1994 nursing facilities
are responsible for providing medically necessary
transportation for residents, unless ambulance
transportation is needed. Reimbursement shall be
included in the nursing facility's direct cost. The
initial amount shall be based on a rjer diem fee
derived from estimated industry cost for
transportation and associated salaries.
fj) This reimbursement limitation shall become
effective in accordance with the provisions of G.S.
108A-55(c).
Authority G.S. 108A-25(b); 108A-54; 108A-55; 29
C.F.R. 1910, Subpart Z; 42 C.F.R. 447, Subpart
C.
.0104 COST REPORTING: AUDITING
AND SETTLEMENTS
(a) Each facility that receives payments from the
North Carolina Medicaid Program must prepare
and submit a report of its costs and other financial
information, such as the working trial balance,
related to reimbursement annually. The report
must include costs from the fiscal period beginning
on October 1 and ending on September 30 and
must be submitted to the state on or before the
December 31 that immediately follows the
September 30 year end. A new provider must
submit a report for the period beginning with the
date of certification and ending on September 30.
Hospital based nursing facilities with a fiscal year
ending other than September 30 and State operated
facilities with a June fiscal year ending must file
their cost reports within 90 days after their fiscal
year ends. Facilities that fail to file their cost
reports by the due date are subject to payment
suspension until the reports are filed. The Division
of Medical Assistance may extend the deadline 30
days for filing the report if, in its view, good
cause exists for the delay.
(b) Cost report format. The cost report must be
submitted on forms and in a format and medium
approved by the Division of Medical Assistance
The account structure for the report is based on the
chart of accounts published by the American
Healthcare Association in 1979 but amended or
modified to the extent necessary to meet the
special reimbursement requirements of this plan.
The Division of Medical Assistance will make one
copy of the cost report format available to each
facility (combination facilities receive only one) on
or before July 1 of the reporting year for which
the report is to be filed.
(c) Cost finding and allocation. Costs must be
reported in the cost report in accordance with the
following rules and in the order of priority stated.
(1) Costs must be reported in accordance
with the specific provisions of this plan
as set forth in this Rule.
(2) Costs must be reported in conformance
with the Medicare Provider
Reimbursement Manual, HCEA 15.
(3) Costs must be reported in conformance
with Generally Accepted Accounting
Principles.
(d) The specific cost reporting guidelines related
to this plan are set forth in the following
Paragraphs. The state will publish guidelines,
consistent with the provisions of this plan,
concerning the proper accounting treatment for
items described in this Rule as related operating
expenses. The guidelines may be modified prior
to the beginning of each cost reporting period. In
no case, however, shall any modifications be
applied retroactively. A provider should request
clarification in writing from the state if there is
uncertainty about the proper cost center
classification of any particular expense item.
(1) Nursing Cost Center includes the cost
of nursing staff, medical supplies, and
related operating expenses needed to
provide nursing care to patients,
including medical records (including
forms), utilization review, the Medical
Director and the Pharmacy Consultant.
1896 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
The amount of nursing time provided to
each patient must be recorded in order
to allocate nursing cost between skilled
and intermediate nursing care.
(2) Dietary Cost Center includes the cost of
staff, raw food, and supplies needed to
prepare and deliver food to patients.
(3) Laundry and Linen Cost Center
includes the cost of staff, bed linens
(replacement mattresses and related
operating expenses needed to launder
facility-provided items).
(4) Housekeeping Cost Center includes the
cost of staff and supplies needed to
keep the facility clean.
(5) Patient Activities Cost Center includes
the cost of staff, supplies, and related
operating expenses needed to provide
appropriate diversionary activities for
patients.
(6) Social Services includes the cost of
social workers and related operating
expenses needed to provide necessary
social services to patients.
(7) Ancillary Cost Center includes the cost
of all therapy services covered by the
Medicaid program and billable medical
supplies. Providers must bill Medicare
Part B for those ancillary services
covered under the Medicare Part B
program. Ancillary cost centers
include: Radiology, Laboratory,
Physical Therapy, Occupational
Therapy, Speech Therapy, Oxygen
Therapy, Intravenous Fluids, Billable
Medical Supplies, Parenteral/Enteral
Therapy and life sustaining equipment,
such as oxygen concentrators,
respirators, and ventilators and other
specifically approved equipment.
(A) Effective October 1^ 1994, a separate
ancillary cost center shall be
established to include costs associated
with medically related transportation
for facility residents. Medically
related transportation costs include the
costs of vehicles leased or owned by
the facility, payroll costs associated
with transporting residents and
payments to third parties for
providing these services.
(8) Administrative and General Cost Center
includes all costs needed to administer
the facility including the staff costs for
the administrator, assistants, billing and
secretarial personnel, personnel director
and pastoral expenses. It includes the
costs of copy machines, dues and
subscriptions, transportation, income
taxes, legal and accounting fees,
start-up, and a variety of other
administrative costs as set forth in the
Chart of Accounts. Interest expense
other than that stemming from
mortgages or loans to acquire physical
plant items shall be reported here.
(9) Property Ownership and Use:
(A) This cost center includes all allowable
costs related to the acquisition and/or
use of the physical assets including
building, fixed equipment and
movable equipment, that are required
to deliver patient care, except the
special equipment, as specified in
.0104(d)(7) of this Rule that may be
charged to the life-sustaining
equipment cost center. Specifically it
includes the following items:
(i) all equipment expense regardless
of equipment nature,
(ii) lease expense for all physical
assets,
(iii) depreciation of assets utilizing the
straight line method,
(iv) interest expense of asset related
liabilities, (e.g., mortgage
expense),
(v) property taxes.
(B) For the purposes of computing
allowable lease expense and for
balance sheet presentation for Return
on Equity computations (see Rule
.0105), leases shall not be capitalized.
(C) In establishing the allowable cost for
depreciation and for interest on capital
indebtedness, with respect to an asset
which has undergone a change of
ownership, the valuation of the asset
shall be the lesser of allowable
acquisition cost less accumulated
depreciation to the first owner of
record on or after July 18, 1984 or
the acquisition cost to the new owner.
Depreciation recapture will not be
performed at sale. The method for
establishing the allowable related
capital indebtedness shall be as
follows:
(i) The allowable asset value shall be
divided by the actual acquisition
NORTH CAROLINA REGISTER February 15, 1995 1897
PROPOSED RULES
cost,
(ii) The product computed in step 1
shall be multiplied times the value
of any related capital
indebtedness,
(iii) The result shall be the liability
amount upon which interest may
be recorded at the rate set forth in
the debt instrument or such lower
rate as the state may prove is
reasonable. The allowable asset
and liability values established
through the process in this Rule
shall be those used in balance
sheet presentations for return on
equity computation (see Rule
.0105). These procedures are
established to implement the
provisions of PL 98-369 Section
2314.
(10) Operation of Plant and Maintenance
Cost Center includes all costs necessary
to operate or maintain the functionality
and appearance of the plant. These
include: maintenance staff, utilities,
repairs and maintenance to all
equipment.
(11) Equipment Expense. Equipment is
defined as an item with a useful life of
more than two years and a value greater
than five hundred dollars ($500.00).
Equipment ownership and use costs
shall be reported in the Property
Ownership and Use Cost Center.
Equipment maintenance and repair costs
shall be reported in the Operation of
Plant and Maintenance Cost Center.
Equipment shall not be reported
elsewhere.
(12) Training Expense. Training expense
must be identified in the appropriate
benefiting cost center. The costs of
training nurse aides must be identified
separately and may include the cost of
purchasing programs and equipment
that have been approved by the State
for training or testing.
(13) Home Office Costs. Home office costs
are generally charged to the
Administrative and General Cost
Centers. In some cases, however,
certain personnel costs which are direct
patient care oriented may be allocated
to "direct" patient care cost centers if
time records are maintained to
document the performance of direct
patient care services. No Home office
overhead may be so allocated. The
basis of this allocation among facilities
participating in the North Carolina
Medicaid program may be:
(A) specific time records of work
performed at each facility, or
(B) patient days in each facility to which
the costs apply relative to the total
patient days in all the facilities to
which the costs apply.
(14) Management Fees. Management fees
are charged to the Administrative and
General Cost Center. In some cases,
however, a portion of a management
fee may be allocated to a direct patient
care cost center if time records are
maintained to document the
performance of direct patient care
services. The amount so allocated may
be equal only to the salary and fringe
benefits of persons who are performing
direct patient care services while
employed by the management company.
Adequate records to support these costs
must be made available to staff of the
Division of Medical Assistance. The
basis of this allocation among facilities
participating in the North Carolina
Medicaid program may be:
(A) specific time records of work
performed at each facility, or
(B) patient days in each facility to which
the costs apply relative to the total
patient days in all the facilities to
which the costs apply.
(15) Related Organization Costs. It is the
nursing facility's responsibility to
demonstrate by convincing evidence to
the satisfaction of the Division of
Medical Assistance that the costs are
reasonable. Reasonable costs of related
organizations are to be identified in
accordance with direct and indirect cost
center categories as follows:
(A) Direct Cost:
(i) Compensation of direct care staff
such as nursing personnel (aides,
orderlies, nurses), food service
workers, housekeeping staff and
other personnel who would
normally be accounted for in a
direct cost center,
(ii) Supplies and services that would
1898 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
normally be accounted for in a
direct cost center,
(iii) Capital, rental, maintenance,
supplies/repairs and utility costs
(gas, water, fuel, electricity) for
facilities that are not typically a
part of a nursing facility. These
facilities might include such items
as warehouses, vehicles for deliv-ery
and offices which are totally
dedicated or clearly exceed the
number, size, or complexity
required for a normal nursing
facility, its home office, or man-agement
company,
(iv) Compensation of all adminis-trative
staff who perform no
duties which are related to the
nursing facility or its home office
and who are neither officers nor
owners of the nursing facilities or
its home office.
(B) Indirect Cost:
(i) Capital, rental, maintenance,
supplies/repairs, and utility costs
which are normally or frequently
a part of a nursing facility. This
would include, for example,
kitchen and laundry facilities,
(ii) Home office costs except for
salary and fringe benefits of Per-sonnel,
Accounting and Data
Processing staff which are allocat-ed
by acceptable methods are
direct costs when the work per-formed
is specific to the related
organization that provides a direct
care service or product to the
provider,
(iii) Compensation of all administra-tive
staff who perform any duties
for the nursing facility or its home
office,
(iv) All compensation of all officers
and owners of the nursing facility
or its home office, or parent
corporation.
The related organization must file a Medicaid
Cost Statement (DMA-4083) identifying their
osts, adjustments to costs, allocation of costs,
equity capital, adjustments to equity capital, and
^locations of equity capital along with the nursing
facilities cost report. A home office, or parent
ompany, will be recognized as a related organiza-
:ion. Auditable records to support these costs
must be made available to staff of the Division of
Medical Assistance and its designated contract
auditors. Undocumented costs will be disallowed.
It is the nursing facility's responsibility to demon-strate
by convincing evidence to the satisfaction of
the Division of Medical Assistance that the criteria
in the Provider Reimbursement Manual, Section
1010, has been met in order to be recognized as an
exception to the related organization principle.
When a related organization is deemed an excep-tion;
reasonable charges by the related organiza-tion
to the nursing facility are recognized as
allowable costs; receivable/payables from/to the
nursing facility and related organization deemed an
exception are not adjusted from the nursing
facility's balance sheet in computing equity capital.
(e) Auditing and Settlement. All filed cost
reports must be desk audited and interim
reimbursement settlements made in accordance
with the provision of this plan. This settlement is
issued within 1 80 days of the date the cost report
was filed or within 180 days of December 31 of
the fiscal year to which the report applies,
whichever is later. The state may elect to perform
field audits on any filed cost reports within three
years of the date of filing and issue a final
settlement on a time schedule that conforms to
Federal law and regulation. If the state decides
not to field audit a facility a final reimbursement
notice may be issued based on the desk audited
settlement. The state may reopen and field audit
any cost report after the final settlement notice to
comply with Federal law and regulation or to
enforce laws and regulations prohibiting abuse of
the Medicaid Program and particularly the
provisions of this reimbursement plan.
(f) This reimbursement limitation shall become
effective in accordance with the provisions of G.S.
108A-55(c).
Authority G.S. W8A-25(b); 108A-54; 108A-55; 42
C.F.R. 447, Subpart C.
TITLE 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
CHAPTER 2 - ENVIRONMENTAL
MANAGEMENT COMMISSION
The Environmental Management Commis-sion
is extending the public comment period from
February 20, 1995 to March 20, 1995 for the
proposed rule modifications in Subchapter 2B
.0100, 2B .0200 and 2H .0500, governing issuance
9:22 NORTH CAROLINA REGISTER February 15, 1995 1899
PROPOSED RULES
of 401 Water Quality Certifications and water
quality standards for wetlands. Because of the
significant public interest in the proposed rules, the
record will remain open until March 20th to allow
additional written comments received after Febru-ary
20th to become part of the official record.
The proposed rule changes were published in the
North Carolina Register, Volume 9, Issue 17,
pages 1348-1367 (9:17 NCR 1348-1367). The
proposed rules affected are cited as 15A NCAC 2B
.0101, .0103, .0109, .0201, .0202, .0220, and
15A NCAC 2H .0501, .0502, .0503, .0504,
.0506, and .0507. The Division will accept
written comments received through March 20,
1995. For information on the proposed rule
changes or the comment period extension, contact
Ron Ferrell, North Carolina Division of Environ-mental
Management, RO. Box 29535, Raleigh,
NC 27606-0535, (919-733-0026).
The Division of Environmental Manage-ment
is extending the public comment period from
January 16, 1995, until March 1, 1995, for the
proposed rules defining potential emissions for
various types of sources. These rules were pub-lished
on November 15, 1994 in the North Caroli-na
Register, Volume 9, Issue 16, pages 1261-1283
(9:16 NCR 1261-1283). The proposed rules are
cited as 15A NCAC 2Q .0801 -.0807. All persons
interested in these matters are invited to submit
written comments. The Division will accept
written comments through Wednesday, March 1st
for inclusion in the hearing record. Comments
should be sent to and additional information
concerning the proposals may be obtained by
contacting:
Mr. Thomas Allen
Division of Environmental Management
P.O. Box 29535
Raleigh, North Carolina 27626-0535
(919) 733-1489 (Phone)
(919) 733-1812 (Fax)
Notice is hereby given in accordance with G.S.
150B-21.2 that the N. C. Wildlife Resources Com-mission
intends to amend rules cited as 15A NCAC
WB .0106 and 10F .0354.
1 he proposed effective date of this action is July
1, 1995.
1 he public hearing will be conducted at 10:0
a.m. on March 6, 1995 at the Archdale Building
Room 332, 512 N. Salisbury Street, Raleigh, N
27604.
Ixeason for Proposed Action:
ISA NCAC 10B .0106 - To establish requirement
and procedures for wildlife damage control agenti
To establish requirements and procedures fo
mounting by taxidermists of wildlife and bin
accidentally killed by automobile.
15A NCAC 10F .0354 - To regulate boat speed i
congested area.
Lsomment Procedures: Interested persons ma
present their views either orally or in writing
the hearing. In addition, the record of hearin
will be open for receipt of written comments froi
February 15, 1995 through March 17, 1995. Sue
written comments must be delivered or mailed t
the N. C. Wildlife Resources Commission, 512 P
Salisbury Street, Raleigh, N C. 27604-1188.
CHAPTER 10 - WILDLIFE RESOURCES
AND WATER SAFETY
SUBCHAPTER 10B - HUNTING
AND TRAPPING
SECTION .0100 - GENERAL
REGULATIONS
.0106 WILDLIFE TAKEN FOR
DEPREDATIONS OR
ACCIDENTALLY
(a) Depredation Permit:
(1) Endangered or Threatened Species. N
permit shall be issued to take any ei
dangered or threatened species of wil<
life listed under 15A NCAC 101
reason of depredations to property. A
individual may take an endangered
threatened species in immediate defens
of his own life or of the lives of othe
without a permit. Any endangered c
threatened species which may constitu
a demonstrable but non-immedia
threat to human safety shall be reporte
to a federal or state wildlife enforo
ment officer, who, upon verification <
the report, may take or remove tl
1900 NORTH CAROLINA REGISTER February 15, 1995 9:2
PROPOSED RULES
specimen as provided by 15A NCAC
101 .0002.
(2) Other Wildlife Species. Except as
provided in Subparagraph (1) of this
Paragraph, the Executive Director or an
agent of the Wildlife Resources Com-mission
may, upon application of a
landholder and after such investigation
of the circumstances as he may require,
issue a permit to such landholder to
take any species of wildlife which is or
has been damaging or destroying his
property provided there is evidence of
substantial property damage. No per-mit
may be issued for the taking of any
migratory birds and other federally
protected animals unless a correspond-ing
valid U.S. Fish and Wildlife Ser-vice
depredation permit has been is-sued.
The permit shall name the spe-cies
allowed to be taken and, in the
discretion of the Executive Director or
an agent, may contain limitations as to
age, sex or any other condition within
the species so named. The permit may
be used only by the landholder or an-other
person named on the permit.
,exoept that, upon written requeot of th e
landholder and when it is conclusively
determined on the basis of information
oubmitted by him that ho io incapable of
aooompliohing—the
—
necessary—oontrol
without help, the nameo of additional
persons may be entered upon the permit
by the Executive Director as authorized
users.
(3) Wildlife Damage Control Agents:
Upon satisfactory completion of a
Wildlife Resources Commission ap-proved
training and satisfactory demon-stration
of a knowledge of wildlife laws
and safe, humane wildlife handling
techniques, an individual may apply to
the Wildlife Resources Commission
(Commission) to become a Wildlife
Damage Control Agent (WDCA).
Those persons approved as agents by
the Commission may then issue depre-dation
permits to landholders and list
themselves as a second party to provide
the control service. WDCAs may not
issue depredation permits for big game
animals, bats, or species listed as en-dangered,
threatened or special concern
under Rules 101 .0003, .0004 and
.0005 of this Chapter. WDCAs must
report to the Wildlife Resources Com-mission
the number and disposition of
animals taken, by county, annually.
Records must be available for inspec-tion
by a Wildlife Enforcement officer
at any time during normal business
hours. WDCA status may be revoked
at any time by the Executive Director
when there is evidence of violations of
wildlife laws, failure to report, or
inhumane treatment of animals by the
WDCA. WDCAs may not charge for
the permit, but may charge for their
investigations and control services. In
order to maintain a knowledge of cur-rent
laws, rules, and techniques.
WDCA's must renew their agent status
every three years by showing proof on
having attended at least one Wildlife
Commission approved training course
provided for the purpose of reviewing
and updating information on wildlife
laws and safe, humane wildlife handling
techniques within the previous 12
months.
(b) Term of Permit. Each depredation permit
issued by the Executive Director or an agent shall
have entered thereon a date or time of expiration
after which date or time the same shall become
invalid for any purpose, except as evidence of
lawful possession of any wildlife that may be
retained thereunder.
(c) Manner of Taking:
(1) Taking Without a Permit. Wildlife
taken without a permit while
committing depredations to property
may, during the open season on the
species, be taken by the landholder by
any lawful method. During the closed
season such depredating wildlife may
be taken without a permit only by the
use of firearms.
(2) Taking With a Permit. Wildlife taken
under a depredation permit may be
taken only by the method or methods
specifically authorized by the permit.
The—esly
—
methods—that—may—be
authorized in talcing game species, other
than foxes, io by the use of firearms
and—live
—
traps. The
—
permit—may
authorize th« taking ef- foxes,
furbearing—animals,—and
—
nongame
animals or birds by the uso of firearms
or traps, including steel traps. When
9:22 NORTH CAROLINA REGISTER February 15, 1995 1901
PROPOSED RULES
trapping is authorized, in order to limit
the taking to the intended purpose, the
permit may specify a reasonable
distance from the property sought to be
protected, according to the particular
circumstances, within which the traps
must be set. The Executive Director or
agent may also state in a permit
authorizing trapping whether or not bait
may be used and the type of bait, if
any, that is authorized. In addition to
any trapping restrictions that may be
contained in the permit the method of
trapping must be in accordance with the
requirements and restrictions imposed
by G.S. 1 13-291 .6 and other local laws
passed by the General Assembly . No
depredation permit shall authorize the
use of poisons or pesticides in taking
wildlife except in accordance with the
provisions of the North Carolina
Pesticide Law of 1971, the Structural
Pest Control Act of 1955, and Article
22A of Chapter 113 of the General
Statutes of North Carolina. No
depredation permit shall authorize the
taking of wildlife by any method by any
landholder upon the lands of another.
(3) Intentional Wounding. It is unlawful
for any landholder, with or without a
depredation permit, intentionally to
wound a wild animal in a manner so as
not to cause its immediate death as
suddenly and humanely as the
circumstances permit.
(d) Disposition of Wildlife Taken:
(1) Generally. Except as provided by the
succeeding Subparagraphs of this
Paragraph, any wildlife killed
accidentallyT or without a permit while
committing depredations , or under a
depredation permiH shall be buried or
otherwise disposed of in a safe and
sanitary manner on the property, where
the depredations took place, of the
landholder in whose name the permit-is
issued or who kills suoh wildlife while
committing—depredations. Wildlife
killed under a depredation permit may
be transported to an alternate disposal
site if desired. Anyone in possession of
carcasses of animals being transported
under a depredation permit must have
the depredation permit in their
possession. Except as provided by the
(2)
(3)
succeeding Subparagraphs of (d)(2)
through (6) of this Rule, all wildlife
killed under a depredation permit must
be buried or otherwise disposed of in a
safe and sanitary manner.
Deer. Any landholder who lullo a doc*
under—a currently—valid—deprodatioB
permit for deer must report ouoh kill
The edible portions of up to five deer
may be retained by the landholder for
consumption but must not be
transported from the property where the
depredations took place without a valid
depredation permit. An enforcement
officer, within 24 hours and beforo the
doer is butohered for consumption to a
wildlife enforcement officer, who upon
determining that th e kill wao lawfully
made within the scope of th e permit -aad
if so requested by the permittee, shall
provide the permittee a written
authorization for his own private uoo or
the use by a charitable organization of
the edible portions of the carcass. The
nonedible portions of the carcass,
including head, hide, feet, and antlers
shall be disposed of as specified in
Subparagraph (1) of this Paragraph or
turned over to a wildlife enforcement
officer for disposition. When a deer is
accidentally killed on a road or highway
by reason of collision with a motor
vehicle, the law enforcement officer
who investigates the accident shall
upon request of the operator of the
vehicle, provide such operator a written
permit authorizing him to possess and
transport the carcass of such deer for
his personal and lawful use, including
delivery of such carcass to a second
person for his private use or the use by
a charitable organization upon
endorsement of such permit to such
person or organization by name and
when no money or other consideration
of value is received for such delivery or
endorsement.
Fox. Any fox killed accidentally by a
dog or dogs, motor vehicle, or
otherwise shall be disposed of as
provided by Subparagraph (1) of this
Paragraph. Any fox killed under a
depredation permit may be disposed of
in the same manner or, upon
compliance with the fur tagging
1902 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
requirements of 15A NCAC 10B .0400,
the carcass or pelt thereof may be sold
to a licensed fur dealer. Any live fox
taken under a depredation permit may
be sold to a licensed controlled hunting
preserve for fox in accordance with
G.S. 113-273(g).
(4) Furbearing Animals. The carcass or
pelt of any furbearing animal killed
during the open season for taking such
furbearing animal either accidentally or
for control of depredations to property,
whether with or without a permit, may
be sold to a licensed fur dealer
provided that the person offering such
carcass or pelt for sale has a valid
hunting or trapping license, provided
further that, bobcats and otters may
only be sold upon compliance with any
required fur tagging requirement set
forth in 15A NCAC 10B .0400.
(5) Animals Taken Alive. Wild animals in
the order garnivora and beaver shall be
humanely euthanized either at the site
of capture or at an appropriate facility
designed to humanely handle the
euthanasia or released on the property
where captured. Animals transported
or held for euthanasia must be
euthanized within 12 hours of capture.
Anyone in possession of live animals
being transported for relocation or
euthanasia under a depredation permit
must have the depredation permit in
their possession.
(5) Nongame Animals aed Birds.
Nongame
—
animals—e?—birds—killed
accidentally er fef control ef
depredations—may be disposed of as
provided by Subparagraph (1) of this
Paragraph or in any other safe and
sanitary manner.
(6) A person killing a wild bird or wild
animal accidentally with a motor
vehicle or finding a dead wild bird or
wild animal which was killed
accidentally may possess that wild bird
or wild animal for a period not to
exceed 10 days for the purpose of
delivering it to a licensed taxidermist
for preparation. The licensed
taxidermist may accept the wild bird or
wild animal after satisfying himself that
the animal was killed accidentally. The
taxidermist shall certify and record the
circumstances
determined by
of acquisition as
his injury. Licensed
taxidermists shall keep accurate records
of each wildlife specimen received
pursuant to the Rule as required by
Rule 10H .1003 of this Chapter. Upon
delivery of the finished taxidermy
product to the person presenting the
animal, the taxidermist shall give the
person a receipt in the form required by
the Wildlife Resources Commission
indicating the species, date of delivery,
circumstances of initial acquisition and
any other information that may be
required on the form. A copy of this
receipt shall be filed with the Wildlife
Resources Commission within 10 days
of the date of delivery of the mounted
specimen. The receipt shall serve as
the non-transferable permit for
continued possession of the mounted
specimen and shall be retained by the
person for as long as the mounted
specimen is kept. Mounted specimens
possessed pursuant to this Rule may not
be sold and, if such specimens are
transferred by gift or inheritance, the
new owner must apply for a new permit
and must submit the written receipt
originally obtained from the taxidermist
to document the legality of possession.
This provision does not allow
possession of accidentally killed
raptors; migratory birds; species listed
as endangered, threatened, or of special
concern under Rules 101 .0003, .0004,
and .0005 of this Chapter; bear or wild
turkey.
(e) Reporting Requirements. Any landholder
who kills a deer, bear or wild turkey under a
currently valid depredation permit shall report such
kill on the form provided with the permit and mail
the form immediately upon the expiration date to
the Wildlife Resources Commission. The killing
and method of disposition of ever)' game animal
and game bird, every furbearing animal, and every
nongame animal or nongame bird for which there
is no open season, when killed for committing
depredations to property, either with or without a
permit, shall be reported to the Wildlife Resources
Commission within 24 hours following th e time of
such lulling, except that when th e carcass or pelt
of a fox, kill ed under a depredation permit, or of
a furbearing animal, killed with or without a
permit, is lawfully sold to a lice nsed fur dealer in
NORTH CAROLINA REGISTER February 15, 1995 1903
PROPOSED RULES
thin State tho fur dealer is required to report the
souroe of acquisition and no report is required of
the seller.
Statutory Authority G.S. 113-134; 113-273;
113-274; 113-291.4; 113-291.6; 113-300.1;
113-300.2; 113-307; 113-331; 113-333;
113-334(a); 113-337.
SUBCHAPTER 10F - MOTORBOATS
AND WATER SAFETY
SECTION .0300 - LOCAL WATER
SAFETY REGULATIONS
.0354 PITT COUNTY
(a) Regulated Areas. This Rule applies to the
waters described in this Paragraph:
(1) The entire inlet of Hardee Creek from
the Tar River in Pitt County.
(2) That portion of the Tar River beginniflg
at the curve approaohing Seine Beach to
the East side of the Grimesland Bridge
as marked at each end by appropriate
markers. The Seine Beach area of the
Tar River beginning at Chicod Creek
and extending to the east side of the
Grimesland Bridge as marked by
appropriate markers.
(b) Speed Limit. No person shall operate a
motorboat or vessel at greater than no-wake speed
within the regulated areas described in Paragraph
(a) of this Rule.
(c) Placement and Maintenance of Markers.
The Board of Commissioners of Pitt County is
designated a suitable agency for placement and
maintenance of markers implementing this Rule.
Statutory Authority G.S. 75A-3; 75A-15.
TITLE 18 - SECRETARY OF
STATE
iSotice is hereby given in accordance with G.S.
150B-21.2 that the N. C. Department of the Secre-tary
of State intends to amend rules cited as 18
NCAC6 .1201 and .1210.
1 he proposed effective date of this action is May
1. 1995.
1 he public hearing will be conducted at 10:00
a.m. on March 2, 1995 at the Legislative Office
Building, 300 N. Salisbury St. , Suite 100, Confer-ence
Room, Raleigh, NC 27603.
Ixeason for Proposed Action: To facilitate greater
investment opportunities for North Carolina inves-tors.
Lsomment Procedures: Interested persons may
present oral or written statements at the public
hearing, or in writing prior to the hearing by mail
addressed to Mr. Gene Cella, Administrator,
Securities Division, N. C. Dept. of the Secretary of
State, 300 N. Salisbury St. , Raleigh, NC 27603.
For copies of any information relating to the
hearing call (919) 733-3924, or write to the
aforementioned address. The comment period will
end on March 17, 1995.
CHAPTER 6 - SECURITIES DIVISION
SECTION .1200 - EXEMPTIONS
.1201 DESIGNATED SECURTTTES
EXCHANGES
The national securities exchanges designated by
the administrator for the purposes of G.S.
78A-16(8) shall be:
(1) New York Stock Exchange,
(2) American Stock Exchange,
(3) Midwest Stock Exchange,
(4) Pacific Stock Exchange^
(5) Philadelphia Stock Exchange.
Statutory Authority G.S. 78A-16(8).
.1210 SECURITIES EXCHGS/AUTO
QUOTATION SYS APPROVED/
ADMINISTRATOR
For purposes of G.S. 78A-16(15), the following
securities exchanges and automated quotation
systems are approved provided such exchanges or
systems comply with the provisions of Paragraphs
(1) through (4) of the Memorandum of
Understanding regarding a Model Uniform
Marketplace Exemption From State Securities
Registration Requirements [SEC Release 33-6810
(December 16, 1988), CCH NASAA Reports, par.
11,120] or the Memorandum of Understanding
between The North American Securities
Administrators Association, Inc. and The
Philadelphia Stock Exchange, Inc., incorporated
herein by reference. The incorporated material
may be obtained, free of charge, from the North
Carolina Secretary of State, Securities Division,
1904 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
30 North Salisbury Street, Suite 100, Raleigh,
orth Carolina 27603-5909 :
(1) New York Stock Exchange,
(2) American Stock Exchange,
(3) Pacific Stock Exchange,
(4) Midwest Stock Exchange,
(5) NASDAQ National Market System, and
(6) Chicago Board Options Exchange^ and
(7) Philadelphia Stock Exchange.
tatutory Authority G.S. 78A-16(15); 150B-21.6.
TITLE 21 - OCCUPATIONAL
LICENSING BOARD
:HAPTER 2 - BOARD OF ARCHITECTURE
Sotice is hereby given in accordance with G.S.
50B-21.2 that the North Carolina Board of
rchitecture intends to amend rules cited as 21
1CAC 2 .0101, .0108, .0201 - .0202, .0204 -
1206, .0208 - .0210, .0212, .0215 - .0216, .0302
.0303, .0402, .0405, .0603; adopt 21 NCAC 2
0218 - .0219; repeal 21 NCAC 2 .0103 - .0105,
9207 and .0602.
p
he proposed effective date of this action is June
, 1995.
n
he public hearing will be conducted at 9:00
m. on March 22, 1995 at the Methodist Build-ig,
1307 Glenwood Avenue, Raleigh, NC 27605.
xeason for Proposed Action:
1 NCAC 2 .0101 - Need to relocate office.
1 NCAC 2 .0103 - Rule is duplicative of statute.
G.S. 83A-2)
I NCAC 2 .0104 - Rule is duplicative of statute.
G.S. 83A-5)
'1 NCAC 2 .0105 - Rule is duplicative of statute.
G.S. 83A-14)
\1 NCAC 2 .0108 - Sets out current applicable
ees for Board services.
M NCAC 2 .0201 - Sets out requirements for
vritten notice offirm or address changes.
\1 NCAC 2 .0202 - Requires licensees to affirm
hey have read current architectural laws and
Tiles.
II NCAC 2 .0204 - Provides for inclusion of
imited liability companies and partnerships in
llowable forms ofpractice.
U NCAC 2 .0205 - Provides language to include
limited liability companies and partnerships.
21 NCAC 2 . 0206 - Clarifies the requirements and
guidelines for use of the architectural seal.
21 NCAC 2 .0207 - Rule is duplicative of statute.
(G.S. 83A-15)
21 NCAC 2 .0208 - Defines dishonest conduct.
21 NCAC 2 .0209 - Defines unprofessional con-duct.
21 NCAC 2 . 0210 - Defines incompetent conduct.
21 NCAC 2 .0212 - Defines certain types of
conflicts of interest.
21 NCAC 2 .0215 - Prohibits foreign corporations
from evading registration requirements by practic-ing
through an individual license.
21 NCAC 2 .0216 - Requires a limited liability
partnership to annually submit a list of partners.
21 NCAC 2 .0218 - Establishes the requirements
necessary to practice as a limited liability compa-ny.
21 NCAC 2 .0219 - Establishes the requirements
necessary to practice as a limited liability partner-ship.
21 NCAC 2 .0302 - Clarifies and extends the
opportunity for exam applicants qualified under
prior rules to sit for the exam.
21 NCAC 2 .0303 - Provides for alternative means
of obtaining reciprocal registration.
21 NCAC 2 .0402 - Change Statutory reference
within Rule.
21 NCAC 2 .0405 - Removes language stating a
requirement already covered by statute.
21 NCAC 2 .0602 - Rule is duplicative of statute.
21 NCAC 2 .0603 - Clarifies who may request a
hearing.
Lsomment 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 Wednesday, March 22, 1995.
Anyone planning to attend the hearing should
notify the Board office by noon Friday, March 17,
1995 whether they wish to speak on the proposals.
Speakers will be limited to 5 minutes.
SECTION .0100 - GENERAL PROVISIONS
.0101 AUTHORITY: NAME AND
LOCATION OF BOARD
The "North Carolina Board of Architecture,"
subsequently herein referred to as the "Board," is
established and authorized by Chapter 83A of the
General Statutes of North Carolina. Unless other-wise
directed, all communications should be
h22 NORTH CAROLINA REGISTER February 15, 1995 1905
PROPOSED RULES
addressed to the Board at 501 North Blount Street,
Raleigh, North Carolina 27604 127 West Hargett
Street, Suite 304, Raleigh, North Carolina 27601 .
Statutory Authority G.S. 83A-2; 83A-6.
.0103 DUTIES OF OFFICERS
(a)
President.—The president ohall, when pre s
ent, preside at all meetings, appoint all oommit
teos , sign all certificates issued and perform all
other duties pertaining to his office .
{&)
—
Vice Pres ident.—The vice president, in th e
absence of the president, shall perform ail of th e
duties of the president.
(o) Seoretary,—The secretary, with th e assistance
of an executive director, shall:
(4^ conduct and care for all th e oorrespon
denoe of th e Board, keep th e minutes of
all the meetings, keep all books and
records, and shall also sign all certifi
eatos issued;
{3} have charge, oare and custody of the
official—documents—by
—
order—ef-—the
Board;
{£) provide
—
due notice—of the time and
place of all meetings of the Board to
each member of the Board;
f4) keep a record of the proceedings of th e
Board and registration for all applicants
for registration and admission to prao
tice architecture, giving the name and
looation of the institution or place of
training where the applicant was pre
pared for the practice of architecture,
and such other information as the Board
may deem proper and useful. This
registration shall be prima facie evi
denoe of all matters recorded therein;
{&) mail a copy of "Chapter 83A Archi
tects" of th e North Carolina General
Statutes and the rules of the Board to
each architect licensed with the Board.
(d)
Treasurer.—With the assistance of an exeou
tive director, th e treasurer shall:
<4^ receive -aelHl- monies from architect fef
annual renewal or other fees and depos
it them in an authorized depository of
the Board;
(3) give bond in such sums as the Board
shall determine, with suoh security as
shall be approved by th e Board, said
bond to be conditioned on the faithful
performance of the duti es of the office,
and on the faithful accounting of all
monies and other property.
Statutory Authority G.S. 83A-2; 83A-3; 83A-5,
83A-6.
.0104 PROCEDURE
(a)
—
Order of Business.—The President shall
determine the general order of business to be
followed at eaoh meeting of the Board and ohall
generally follow the Rules of Parliamentary Procc
(b)
—
Books and Records.—The following records
shall be kept in the Board office under the roopon
sibl e charge of the executive director and conoti
tute the official records of the Board:
fB Minutes and Reports.—There will be a
book containing all minutes and offioial
m-reports
in proper order;
Other Documents. Other documents
will be filed and arranged so ao to
properly care for applicants' papers.
bills and receipts, general eorrespon
donoo, material concerning the laws and
procedure of other states and all other
papers whioh are to be temporarily or
permanently preserved.
Statutory Authority G. S. 83A-5; 83A-6.
.0105 DISCD7LINARY ACTION AND
PROCEDURE
The procedure to be followed in conducting
disciplinary actions shall be in aooord with G.S
8 3A 1 4 and Chapter 150B of the North Carolina
General Statutes.
Statutory Authority G.S. 83A-6; 83-14.
.0108 FEES
Fees required by the Board, are payable in
advance and are set forth below:
Initial Registration Application
Individual
Residents $50.00
Nonresidents S 50.00
Corporate $75.00
Examination At Cost (See Rule .0301)
Initial Exam Application $50.00
Re-examination $25.00
Annual license renewal
Individual $50.00
Corporate $100.00
Late renewal Penalty $ 50.00
Reciprocal registration $150.00
Individual Reinstatement (prior year's
renewal and late fees plus current
1906 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
renewal fee) $250.00
Copies of the roster and other publications and
services provided by the Board are available at
cost from the Board office.
Statutory Authority G. S. 83A-4.
SECTION .0200 - PRACTICE OF
ARCHITECTURE
.0201 BOARD LISTING OF
INDrVIDUAL AND FORM NAMES
Every individual licensee, partnership, firm or
corporation has the continuing responsibility of
keeping the Board currently advised of his or its
proper and current mailing address and the name
or names under which he or it is practicing. Each
licensee or firm shall immediately notify the Board
in writing of any and all changes of association or
address. Upon the dissolution of a professional
relationship, the architect member or members
thereof shall promptly notify the Board in writing
concerning such dissolution, and of the succeeding
status and addresses of the individual or firm.
rhis requirement is in addition to registration,
isting and renewal requirements set out elsewhere
in these Rules.
Statutory Authority G.S. 83A-5; 83A-6.
0202 APPLICABDLITY OF BOARD
RULES
The Executive Director shall mail a copy of
Chapter 83A of the North Carolina General Stat-utes
and the rules of the Board adopted hereunder
to each licensed architect in and out of the state to
whom a new license has been issued, by virtue of
laving successfully completed the prescribed
sxamination and having otherwise met the Board's
equirements for registration. Rules adopted and
jublished by the Board under the provisions of
Chapter 83A and Chapter 150B shall be binding
ipon every individual holding a license from the
Board, and upon all professional corporations
egally authorized to offer or to perform architec-tural
services in this state. All licensees of the
Board are charged with having knowledge of the
sustence of the Board rules and shall be deemed
o be familiar with their several provisions and to
mderstand them. Each licensed person and entity
shall affirm in their renewals that they have read
he current architectural laws and rules.
Statutory Authority G.S. 83A-6.
.0204 FORMS OF PRACTICE
The practice of architecture may be carried on by
sole practitioners, partnerships, professional
limited liability companies, registered limited
liability partnerships or registered architectural
corporations, provided all those who practice are
duly licensed, and the firm is properly described
and identified by its name or title. Whenever the
practice of architecture is carried on by a partner-ship,
all partners must be duly licensed in North
Carolina .
Statutory Authority G.S. 83A-4; 83A-6; 83A-8;
57C-2-01; 59-84.2; 59-84.3.
.0205 NAME OF FIRM
(a) A licensee shall not engage in the practice of
architecture under a professional or firm name
which is misleading or deceptive in any way as to
the legal form of the firm or the persons who are
partners, officers, members, or shareholders in the
firm. Examples of misleading or deceptive firm
names include but are not limited to the following:
(1) Use of the plural in any form when the
number of architects in a firm does not
warrant such use or,
(2) Use of the name of an employee unless
that employee is a partner, member or
shareholder or,
(3) Use of the name of deceased architect
in order to benefit from his reputation,
when that architect was not a former
partner, officer, member or shareholder
in the present firm, or
(4) Use of a name which is deceptively
similar to that of existing firm name.
(b) Names of all architectural firms, whether
sole proprietorships, partnerships, professional
limited liability companies, registered limited
liability partnerships or professional corporations,
shall be approved in writing by the Board before
adopted or used by such firm. Provided, however,
that this Rule shall not be construed to require any
firm to seek approval of, or to change, any name
duly adopted in conformity with Board rules in
effect at the date of such adoption other than a
change that results in a violation of Subparagraph
fa) (1) of this Rule .
Statutory Authority G.S. 83A-6; 83A-9; 83A-12;
55B-5.
.0206 REQUIREMENT FOR AND USE
OF PROFESSIONAL SEAL
h22 NORTH CAROLINA REGISTER February 15, 1995 1907
PROPOSED RULES
(a) As more fully set out in this Rule, an
architect must seal his work whether or not the
work is for an exempt project. An architect shall
not sign nor seal drawings, specifications, reports
or other professional work which were not pre-pared
by the architect or under his direct supervi-sion;
provided, however, that in the case of the
portions of such professional work prepared under
the direct supervision of persons employed by the
architect or the architect's firm and who are (4)(d)
registered in this state, the architect may sign and
seal those portions of the professional work if the
architect has reviewed such portions and has
coordinated their preparation. "Direct supervision"
shall be that degree of supervision by a person
overseeing the work of another whereby the
supervisor has control over and detailed knowledge
of the work prepared under his supervision.
(_Q(a) Individual Seal Design. Every licensed
architect shall have an individual seal
which shall be composed of two con-centric
circles with outer and inner
circle diameters of approximately VA
inches and 1 inch respectively. The
architect's name and place of business
shall be between the inner and outer
circles. The words "Registered Archi-tect,
North Carolina" shall be along the
inside perimeter of the inner circle.
The architect's North Carolina registra-tion
number shall be in the center of the
inner circle. (5)(«)
{2}(b) Corporate Seal Design. Every corpora-tion
which shall have obtained from the
Board a certificate for corporate prac-tice
shall have a corporate seal, which
shall be composed of two concentric (6)(f)
circles with outer and inner circle diam-eters
of approximately 1 Vi inches and 1
inch respectively. The Architectural
Corporation's approved North Carolina
name and place of business shall be
between the inner and outer circles.
The words "Registered Architectural
Corporation, North Carolina" shall be
along the inside perimeter of the inner
circle. The corporation's North Caroli- (l)(s)
na registration number shall be in the
center of the inner circle.
£3)(e) Seal Types. The seal required for use
on opaque original contract documents
not intended for duplication shall be of
a type which will produce an impres-sion
facsimile of the seal, or a rubber
stamp which will produce an ink fac-simile
of the seal. The seal required
for use on transparent original contract
documents intended for duplication
shall be of a type which will produce an
ink facsimile of the seal such as a rub
ber stamp, deoal, or computer generat
ed type. The use of pre-printed docu
ments bearing a pre-printed facsimile of
the seal is prohibited.
Individual Seal, Signature and Date
Required. Architects shall affix their
seal, actual signature, and date of affix-ation
to all original contract documents
including index sheets identifying all
dmwingB—covered—specification—cover
and index pages identifying all opooifi
cation pages covered and supplemental
drawings—whioh—afe
—
developed—aed
issued under the direct oupervioion oi
authorship of the arohitoct an contract
dooumenta. architectural documents to
be filed for public record. Document;
shall be signed personally and sealed by
the responsible architect. Final official
record documents (such as tracings)
shall be so signed. The signing and
sealing of the index sheet or sheets {ij
it identifies all parts) of drawings and
specifications shall be considered ade
quate. Without such index, all sheets
and pages shall be so signed and sealed
Presentation Documents. Presentation
documents (renderings, drawings usee
to communicate conceptual information
only) are not required to be sealed oi
signed.
Incomplete Documents. Documents
considered incomplete by the architect
may be released for interim review
without the architect's seal or signature
affixed, but shall be dated, bear the
architect's name and be conspicuously
marked to clearly indicate the docu
ments are for interim review and not
intended for bidding, permit, or con
struction purposes.
Sheets or Pages Prepared By Licensed
Professional Consultants. Those sheets
or pages prepared by licensed profes
sional consultants (such as, for exam
pie, structural, mechanical or electrical
engineers) retained by the architect
shall bear the seal and registration
number of the consultant responsibl
therefore.
1908 NORTH CAROLINA REGISTER February 15, 1995 9:22
PROPOSED RULES
(8){f) Original Signature. The use of signa-ture
reproductions such as rubber
stamps or computer generated or other
facsimiles shall not be permitted in lieu
of actual signatures.
(9}(j) Security of Seal. Authorized use of the
prescribed seal is an individual act
whereby the architect must personally
sign over the imprint of the seal. The
architect is responsible for security of
the seal when not in use.
10)(k) Use of Corporate Seal. The use of the
corporate seal does not replace the
statutory requirement for an architect's
individual seal as required in Subpara-graph
(d) (a)(4) . The corporate seal
must be affixed in addition to the indi-vidual
seal on the cover sheet and each
page of the table of contents of specifi-cations
and drawings.
(b) Standard Design Documents. Standard
design documents prepared by architects who are
registered in this state or in their state of origin
may be sealed by a succeeding licensed architect
registered in North Carolina provided:
(1) the seal of the original architect appears
on the documents to authenticate au-thorship;
(2) the words "standard design document"
appear on each sheet of the documents
prepared by the original architect;
(3) the succeeding North Carolina architect
clearly identifies all modifications to the
standard design documents;
(4) the succeeding North Carolina architect
assumes responsibility for the adequacy
of the design for the specific application
in North Carolina and for the design
conforming with applicable building
codes; and
(5) the succeeding North Carolina architect
affixes his seal to the standard design
documents and a statement substantially
as follows: "These documents have
been properly examined by the under-signed.
I have determined that they
comply with existing local North Caro-lina
codes, and I assume responsibility
for the adequacy of the design for the
specific application in North Carolina."
(c}{fe) Direct Supervision. No architect shall
iffix his seal and signature to contract documents
ieveloped by others not under his direct supervi-sion.
Direct supervision includes:
(1) Dissemination of programmatic re-quirements,
(2) Ongoing coordination and correlation of
consultant's work services with other
aspects of the total design of the pro-ject,
(3) Verification with consultant that
owner's requirements are being met,
(4) Authority over the work services of
those who assisted in the preparation of
the documents,
(5) Assumption of responsibility for the
consultant's work, services, and
(6) Incorporation of cons ultant's
—
work
services into design documents to be
issued for permitting purposes.
Statutory Authority G.S. 83A-6; 83A-10; 83A-12.
.0207 DENIAL: SUSPENSION OR
REVOCATION OF LICENSE
(a) Denial.—The Board may refuse to grant an
examination, or after examination refuse to grant
a lic ense for the practice of architecture, to any
person convicted of a felony,—or who,—in th e
opinion of the Board, has been guilty of di shonest
or unprofessional conduct, or lacks good moral
character as defined in G.S. 8 3A 1(5).
{&)
—
Discipline Affecting License .—The Board
may l evy a civil penalty, reprimand, suspend for
a
—
period—ef-
—
time,—ef—reveke—any
—
corporate
certificate of regi s tration or di scipline a licensee
pursuant to G.S. 83A 15.
Statutory Authority G.S. 83A-1; 83A-6; 83A-7;
83A-15.
.0208 DISHONEST CONDUCT
In addition to tho se grounds as s tated in G.S.
83A 15(1) the following act s or omissions, among
others, may be deemed to be "dishonest conduct"
and to be cause for th e levy of a civil penalty or
for a denial, suspension, or revocation of a license
ef c ertificate ef-
regi stration te practice
architecture :
fB Deceitful Statements.—It s hall be deemed
di shonest conduct to—make untrue or
deceitful statements in an application for
examination, any other application to the
Board—ef
—
m—any
—
statements—ef
representations—te—the
—
Board—ef—
a
committee of the Board.
(a) Deception. An architect shall not
deliberately make a materially false statement or
fail deliberately to disclose a material fact
requested in connection with his application for
9:22 NORTH CAROLINA REGISTER February 15, 1995 1909
PROPOSED RULES
registration renewal.
(b) Contributions,
offer nor make any
An architect shall neither
gifts, other than gifts of
nominal value (including, for example, reasonable
entertainment and hospitality), with the intent of
influencing the judgement of an existing or
prospective client in connection with a project in
which the architect is interested.
(c) Registration of Others. An architect shall
not assist the application for registration of a
person known by the architect to be unqualified
with respect to education, training, experience, or
character.
(d) Knowledge of Violation. An architect
possessing knowledge of a violation of these Rules
by another architect shall report such knowledge to
the Board.
(3) Misrepresentation.—It shall be deemed
dishonest conduct for an architect—to
permit the use of his professional seal by
others, or otherwise represent himself as
the author of drawings or specifications
which are not personally prepared by him
ef under his direct supervision.
However,—"standard design documents"
prepared by architects who are registered
in this state or in th eir state of origin may
be—
s
ealed—by—a
—
succeeding—lic ensed
architect—registered—in North—Carolina
provided:
{a) the seal of the original architect appears
en—the
—
doouments—te
—
authenticate
authorship;
<+H th e words " s tandard d esign docume nt"
appear on each sh eet of the documents
prepared by the original architect;
{e} the succeeding North Carolina architect
clearly identifies all modifications to the
standard design documents;
{d) the succeeding North Carolina architect
assumes responsibility for th e adequacy
of th e des ign for th e specific application
in North Carolina and for th e design
conforming—with
—
applicable
—
building
codes; and
the succeeding North Carolina architect
affixes his seal to the standard design
doouments and a statement substantially
&-
-feik "Th ese documents have
been properly examined—by—the
undersigned. 1 have determined that
th ey comply with existing local North
Carolina codes. and 1 assume
responsibility for th e adequacy of th e
design for the specific application in
m-
North Carolina."
Contributions. 4t
—
shall—be—dee»e<
dishonest conduct—for an architect t<
make or promise to make contributions o
money—or service,—with the intent h
bribe,—for the purpose of securing i
commission e-F
—
influencing—tt
engagement—er—
e
mployment—ef-—ai
architect for a project.
Statutory Authority G.S. 83A-6; 83A-15.
.0209 UNPROFESSIONAL CONDUCT
In addition to those grounds as stated in G.S
83A-15(3) the following acts or omissions, amonj
others, may be deemed to be "unprofessiona
conduct", and to be cause for the levy of a civi
penalty or for denial, suspension, or revocation o
a license or certificate of registration to practice
architecture:
(1) Compliance With Laws. It shall b<
deemed unprofessional conduct for ai
architect, in the conduct of his or he
professional practice, to knowingl;
violate any state or federal criminal law
A criminal conviction shall be deeme<
prima facie evidence of knowingl)
violating the law.
(2) Compliance With Foreign Registration
It shall be deemed unprofessional conduc
for an architect to knowingly violate the
laws governing the practice
architecture or the rules promulgated bj
any other architectural licensing board ii
any United States jurisdiction. A findin
by a foreign architectural registratio
board that an architect has violated a law
or rule governing the practice o
architecture shall be deemed prima faci
evidence of knowingly violating the law
or rule.
(3) Product Specification. It shall be deeme<
unprofessional conduct for an architect tc
solicit or accept financial or othe:
valuable consideration from material o
equipment suppliers for specifying thei
products.
(4) Advertising. It shall be deemec
unprofessional conduct for an architect tc
engage in any false, deceptive
fraudulent, or misleading advertising.
(5) False Statements. It shall be deemec
unprofessional conduct for an architect U
knowingly make false statements abou
the professional work or to malicious!)
1910 NORTH CAROLINA REGISTER February 15, 1995 9:2.
PROPOSED RULES
injure the prospects, practice, or
employment position of others active in
the design and construction of the
physical environment.
(6) Evasion.
(a) It shall be deemed unprofessional
conduct for an architect, through
employment by building contractors, or
by another not holding an individual or
corporate certificate from the Board, to
enable the employer to offer or perform
architectural services, except as
provided in G.S. 83A-13. In
design/build arrangements, the architect
shall not be an employee of a person or
firm not registered or licensed to
practice architecture in North Carolina.
(b) It shall be deemed unprofessional
conduct for an architect to furnish
limited services in such manner as to
enable owners, draftsmen, or others to
evade the public health and safety
requirements of Chapter 83A or the
building permit requirements of Chapter
160A of the North Carolina General
Statutes. G.S. 133-2, G.S. 153A-26 or
G.S. 160A-417.
(c) When building plans are begun or
contracted for by persons not properly
licensed and qualified, it shall be
deemed unprofessional conduct for an
architect to take over, review, revise,
or sign or seal such drawings or
revisions thereof for such persons, or
do any act to enable either such persons
or the project owners, directly or
indirectly, to evade the requirements of
Chapter 83A or G.S. 160A-417.
(7) Branch Office. U—sbaH—be
—
deemed
unprofessional conduct for an architect to
maintain or represent by sign, li sting, or
other manner that he maintains an arohi
teotural office or branch offioe unless
suoh office is continuously staffed with a
registered arohiteot in oharge.—Provided,
however, that this Rule does not apply to
on site project offioes during oonstruo
tion. Each office maintained for the
preparation of drawings, specifications,
reports, or other professional work shall
have an architect resident and regularly
employed in that office having direct
knowledge and supervisory control of
such work.
) Misrepresentation Regarding Prior Expe-rience.
Because of the rolianoo the pub
lie plaoes on architects' qualifications, the
following—requirements—afe
—
provided
regarding the representation of pas t pro
fessional experience. An architect shall
accurately represent to a prospective or
existing client or employer his qualifica-tions
and the scope of his responsibility
in connection with work for which he is
claiming credit.
(a) It shall be the responsibility of each
registered architect to clearly and ap-propriately
state prior professional
experience of the architect and/or the
firm the architect is representing in
presenting qualifications to prospective
clients, both public and private. If an
architect uses visual representations of
prior projects or experience, all
architects-of-record must be clearly
identified. Architect-of-record means
persons or entities whose seals appear
on plans, specifications and/or contract
documents.
(b) An architect who has been an employee
of another architectural practice may
not claim unconditional credit for pro-jects
contracted for in the name of the
previous employer. The architect shall
indicate, next to the listing for each
project, that individual experience
gained in connection with the project
was acquired as an employee, and
identify the previous architectural firm.
The architect shall also describe the
nature and extent of his/her participa-tion
in the project.
(c) An architect who was formerly a princi-pal
in a firm may legitimately make
additional claims provided he/she dis-closes
the nature of ownership in the
previous architectural firm (e.g. stock-holder
or junior partner) and identifies
with specificity his/her responsibilities
for that project.
(d) An architect who presents a project that
has received awards recognition must
comply with the requirements in Sub-paragraph
(8) of this Rule with regard
to project presentation to the public and
prospective clients.
(e) Projects which remain unconstructed
and which are listed as credits should
be listed as "unbuilt or a similar desig-nation.
22 NORTH CAROLINA REGISTER February 15, 1995 1911
PROPOSED RULES
(9) Influencing Government Officials. An
architect shall neither offer nor make any
payment or gift to a government official
(whether elected or appointed) with the
intent of influencing the official's
judgment in connection with a
prospective or existing project in which
the architect is interested,
(10) Fee Bidding on Public Projects. An
architect shall not knowingly cooperate in
a violation of any provisions of G.S. 143-
64.31.
(11) Cooperation with Board. An architect
shall fully cooperate with the Board in
connection with any inquiry it shall make.
Full cooperation includes responding in a
timely manner to all inquiries of the Board
or representative of the Board and
claiming Board correspondence from the
U.S. Postal Service.
Statutory Authority G.S. 83A-6; 83A-15.
.0210 INCOMPETENCE
Any architect who has suffered impairment of
skill and oare in rendering professional services
due to a mental or physical disability or addiction
to alcohol or drugs so as to potentially endanger
the health, safety and welfare of the public- may
voluntarily surrender his license to th e Board at
any time prior to a filing of a Notice of Hearing in
a contested case.—The Board, in its discretion,
may accept the surrender, or reject the surrender
and prooood to a Notice of Hearing under the
provisions of Chapter 150B.
(a) In practicing architecture, an architect shall
act with reasonable care and competence and shall
apply the technical knowledge and skill which is
ordinarily applied by architects of good standing,
practicing in the same locality.
(b) In designing a project, an architect shall take
into account all applicable state and municipal
building laws and regulations. While an architect
may rely on the advice of other professionals
(e.g., attorneys, engineers and other qualified
persons) as to the intent and meaning of such
regulations, once having obtained such advice, an
architect shall not knowingly design a project in
violation of such laws and regulations.
(c) An architect shall undertake to perform
professional services only when he, together with
those whom the architect may engage as
consultants, are qualified by education, training
and experience in the specific technical areas
involved.
(d) No person shall be permitted to practk
architecture, if, in the board's judgment. su<
person's professional competence is substantial
impaired by physical or mental disabilities.
Statutory Authority G.S. 83A-6; 83A-15.
.0212 INDEPENDENT JUDGMENT
AND DISCLOSURE
Upon reoeipt of information or complaint, tt
Board,—m—its
—
discretion,—may
—
investigate ai
incidence of the all eged prohibited praotioo-architecture
—
in North—Carolina by—individual
firm s—ef
—
corporations—net—duly
—
licensed
regi stered—by—the
—
Board. Following—sw
investigation, the Board shall determine whether
net—te—take
—
legal—action—by—way
—
of crimin
pro secution or injunction or such oth er action as
deems necessary to prevent the unlicensed practk
of architecture.
(a) When acting as the interpreter of buildii
contract documents and the judge of contra
performance, an architect shall render decisioi
impartially, favoring neither party to the contract
(b) If, in the course of his work on a project.
architect becomes aware of a decision taken by h
employer or client, against the architect's advici
which violates applicable state or municip;
building laws and regulations and which will,
the architect's judgment, materially affe<
adversely the safety to the public of the finishe
project, the architect shall:
(1) report the decision to the local buildin
inspector or other public offici
12}
£3}
charged with the enforcement of tl
applicable state or municipal buildin
laws and regulations;
refuse to consent to the decision;
in circumstances where the archite<
reasonably believes that other sue
decisions will be taken notwithstandin
his objection, terminate his service
(4}
with reference to the project; and
in the case of termination in accordanc
with clause in Subparagraph (b)(3) (
this Rule, the architect shall have n
liability to his client or employer o
account of such termination.
(c) If an architect has any business associatio
or direct or indirect financial interest which i
substantial enough to influence his judgment i
connection with the performance of profession.
services, the architect shall fully disclose i
writing to his client or employer the nature of th
business association or financial interest, and if th
1912 NORTH CAROLINA REGISTER February 15, 1995 9:2
eing compensated for making such statements.
tatutory Authority G.S. 83A-6; 83A-15.
D215 FOREIGN CORPORATIONS
(a) Incorporation in Other States. Architectural
orporations of other states may be granted
orporate certificates for practice in this State on
le receipt by the Board of a completed
pplication, the submission of a certified copy of
leir corporate charter, amended as may be
ecessary to insure full compliance with all
squirements of Chapter 55B, the Professional
lorporation Act of the State of North Carolina,
nd the payment of the corporate application fee.
a addition to the other requirements as set out in
i.S. 83A-8, foreign corporations must, prior to
sgistration, receive from the Secretary of State of
forth Carolina a certificate of authority to do
usiness within the state. The registration
squirements for foreign corporations cannot be
PROPOSED RULES
lient or employer objects to such association or
nancial interest, the architect will either terminate
uch association or interest or offer to give up the
ommission or employment.
(d) An architect making public statements on
rchitectural questions shall disclose when he is
voided by practice in North Carolina through an
idividual licensee.
(b) Designated Individuals. Foreign
orporations shall be permitted to practice
rchitecture within the State of North Carolina
rovided that at least two-thirds of the issued and
utstanding shares of the foreign corporations are
wned by licensed architects or engineers who are
censed to practice their profession in a
lrisdiction of the United States. However, the
orporation must designate at least one architect
/ho is licensed in the State of North Carolina to
e in responsible charge for the corporate practice
f architecture within the State of North Carolina.
'tatutory Authority G.S. 55B-6; 83A-6; 83A-8.
0216 ANNUAL LISTING OF
PARTNERSHIP
(a) By December 31 of each year, each
artnership or registered limited liability
lartnership engaged in the practice of architecture
n North Carolina shall submit a list of all resident
nd non-resident partners of the partnership,
(b) One annual listing by a representative of the
partnership shall satisfy the requirements of
aragraph (a) of this Rule for all partners of the
inn; however, each partner shall remain
responsible for compliance with the rules.
(c) Changes in the information required by
Paragraph (a) of this Rule shall be filed with the
Board office within 30 days after the change
occurs.
Statutory Authority G.S. 83A-6; 83A-9.
.0218 LIMITED LIABILITY COMPANIES
Architects may practice in this state through duly
authorized limited liability companies only as
provided under G.S. 57C-2-01(c). Any limited
liability company that offers to practice or
practices architecture in this state must comply
with the same requirements applicable to
professional corporations under Rules .0201,
.0202, .0204, .0205, .0214. and .0215 of this
Chapter.
Statutory Authority G.S. 57C-2-01; 83A-6.
.0219 REGISTERED LIMITED
LIABILITY PARTNERSHIPS
Architects may practice in this state through duly
registered limited liability partnerships only as
provided under G.S. 59-84.2 and G.S. 59-84.3.
Any registered limited liability partnership that
offers to practice or practices architecture in this
state must comply with the same requirements
applicable to partnerships under Rules .0201,
.0202, .0204, .0205, and .0216 of this Chapter.
Statutory Authority G.S. 83A-6; 59-84.2; 59-84.3.
SECTION .0300 - EXAMINATION
PROCEDURES
.0302 WRITTEN EXAMINATION
(a) Licensure Examination. All applicants for
architectural registration in North Carolina by
written examination must pass the Architectural
Registration Examination (ARE), administered in
North Carolina, prepared by the National Council
of Architectural Registration Boards (NCARB).
Provided, applicants who have never been
registered in any state or territory may transfer
credits for portions of the examination previously
passed in another state if at the time of taking the
exam elsewhere they otherwise qualified for taking
the exam in North Carolina.
(1) Description. The nature of the
examination is to place the candidate in
areas relating to actual architectural
situations whereby his abilities to
exercise competent value judgements
K-22 NORTH CAROLINA REGISTER February 15, 1995 1913
PROPOSED RULES
(2)
will be tested and evaluated.
Qualifications. The prequalifications
necessary for an applicant's admission
to the Architectural Registration
examination (ARE) are as follows:
(A) be of good moral character as defined
in North Carolina General Statute
83A-K5);
(B) be at least 18 years of age;
(C) hold a degree in architecture from a
college or university where the degree
program has been approved by the
Board, or professional education
equivalents as outlined and defined in
the North Carolina Board of
Architecture's