Section .0100 - Hearing Procedures

Link to law: http://reports.oah.state.nc.us/ncac/title 26 - administrative hearings/chapter 03 - hearings division/chapter 03 rules.html
Published: 2015

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CHAPTER 03 ‑ HEARINGS DIVISION

 

SECTION .0100 - HEARING PROCEDURES

 

26 NCAC 03 .0101             GENERAL

(a)  The rules in this Chapter in effect on January 1, 2012

shall apply to contested cases commenced on or after January 1, 2012. The rules

in this Chapter in effect on December 31, 2011 shall apply to contested cases

commenced on or before December 31, 2011.

(b)  The Rules of Civil Procedure as contained in G.S. 1A-1

and the General Rules of Practice for the Superior and District Courts as

authorized by G.S. 7A-34 and found in the Rules Volume of the North Carolina

General Statutes shall apply in contested cases in the Office of Administrative

Hearings (OAH) unless another specific statute or rule of the Office of

Administrative Hearings provides otherwise.

(c)  The Office of Administrative Hearings shall supply

forms for use in contested cases.  These forms shall conform to the format of

the Administrative Office of the Courts' Judicial Department Forms Manual.

(d)  The Office of Administrative Hearings shall permit the

filing of contested case documents and other pleadings by facsimile (fax) or

electronic mail by an attached file either in PDF format or a document compatible

with Microsoft Word 2007. Electronic mail with attachment shall be sent by

electronic transmission to:  oah.clerks@oah.nc.gov. The faxed or electronic

documents shall be deemed a "filing" within the meaning of 26 NCAC 03

.0102(a)(2) provided the original signed document, one copy and the appropriate

filing fee (if a fee is required by G.S. 150B-23.2) is received by OAH within

seven business days following the faxed or electronic transmission.  Other

electronic transmissions, for example, electronic mail without attached file as

specified in this Paragraph, shall not constitute a valid filing with the

Office of Administrative Hearings.

(e)  Every pleading and other documents filed with OAH shall

be signed by the attorney who prepared the document, if it was prepared by an

attorney, and shall contain his name, address, telephone number, and North

Carolina State Bar number. An original and one copy of each document shall be

filed.

(f)  Except as otherwise provided by statutes or by rules

adopted under G.S. 150B-38(h), the rules contained in this Chapter shall govern

the conduct of contested case hearings under G.S. 150B-40 when an

Administrative Law Judge has been assigned to preside in the contested case.

 

History Note:        Authority G.S. 7A-750; 7A-751(a);

150B-23.2; 150B-40(c);

Eff. August 1, 1986;

Amended Eff. May 1, 2009; January 1, 2006; April 1, 2004;

April 1, 2001; August 1, 2000; February 1, 1994; July 1, 1992; May 1, 1989;

January 1, 1989;

Emergency Amendment Eff. October 1, 2009;

Temporary Amendment Eff. December 1, 2009;

Amended Eff. October 1, 2010;

Temporary Amendment Eff. January 1, 2012;

Amended Eff. November 1, 2012.

26 NCAC 03 .0102             DEFINITIONS

AND CONSTRUCTION

(a)  The definitions contained in G.S. 150B-2 are

incorporated herein by reference.  In addition, the following definitions

apply:

(1)           "Chief Administrative Law Judge"

means the person appointed according to G.S. 7A-752.

(2)           "File or Filing" means to place

the paper or item to be filed into the care and custody of the chief hearings

clerk of the Office of Administrative Hearings, and acceptance thereof by him,

except that the administrative law judge may permit the papers to be filed with

him in which event the administrative law judge shall note thereon the filing

date.  All documents filed with the Office of Administrative Hearings, except

exhibits, shall be in duplicate in letter size 8 1/2" by 11".

(3)           "Service or Serve" means:

(A)          delivery by electronic mail with an attached file in

a format that is readily accessible to the recipient;

(B)          facsimile (fax);

(C)          personal delivery;

(D)          delivery by first class United States Postal Service

mail; or

(E)           delivery by overnight express mail service.

(b)  A Certificate of Service by the person making the

service shall be appended to every document requiring service under these

Rules.

(c)  Service by mail is complete upon placing the item to be

served, enclosed in a wrapper addressed to the person to be served, in an

official depository of the United States Postal Service.

(d)  Service by overnight express mail is complete upon

placing the item to be served, enclosed in a wrapper addressed to the person to

be served, in the custody of an overnight express mail service.

(e)  Service by electronic mail or fax is deemed to occur

one hour after it is sent, provided that:

(1)           documents sent after 5 pm are deemed sent

at 8 am the following day; and

(2)           documents sent by electronic mail that are

not in a format in which the content is readily accessible to the recipient are

not deemed served until actually received in a form in which the content is

readily accessible to the receiving party.  Within five days of receipt, the

receiving party shall notify the sending party that the document sent by

electronic mail is not in a format readily accessible to the recipient.

Service by electronic mail or fax is treated the same as

service by mail for the purpose of adding three days to the prescribed period

to respond under N.C.R. Civ.P.6(e).

(f)  The rules of statutory construction contained in

Chapter 12 of the General Statutes shall be applied in the construction of

these Rules.

 

History Note:        Authority G.S. 7A-752; 150B-23;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; January 1, 1989; November

1, 1987; September 1, 1986;

Temporary Amendment Eff. January 1, 2012;

Amended Eff. November 1, 2012.

 

26 NCAC 03 .0103             COMMENCEMENT OF CONTESTED CASE:

NOTICE AND FILING FEE

(a)  A contested case in the Office of Administrative

Hearings is commenced by the filing of a petition as required by G.S. 150B-23

and payment of the appropriate filing fee (if a fee is required by G.S.

150B-23.2).

(b)  Within five days of filing a petition to commence a

contested case, the Chief Administrative Law Judge shall assign an

administrative law judge to the case.  Within ten days of the filing of a

petition commencing a contested case, the chief hearings clerk of the Office of

Administrative Hearings shall serve a Notice of Contested Case Filing and

Assignment upon all who are parties to the dispute.  The notice shall contain

the following:

(1)           Name of case and date of filing;

(2)           Name, address, and telephone number of the

administrative law judge; and

(3)           A request that the party send within 30

days a copy of the document constituting the agency action that caused the

filing of the petition.

(c)  In contested cases commenced by a person aggrieved

involving the following causes of action, the petitioner shall pay a filing fee

of one hundred twenty-five dollars ($125.00):

(1)           Contested cases challenging certificate of

need filed pursuant to G.S. 131E-188;

(2)           Contested cases challenging permit actions

under G.S. 143-215.1, G.S. 143-215.10C, G.S. 143-215.15, and G.S. 143-215.108;

(3)           Contested cases where the amount in

controversy is fifty thousand dollars ($50,000) or greater.

(d)  In contested cases commenced by a person aggrieved that

do not involve the causes of action listed in Paragraph (c) of this Rule, the

petitioner shall pay a fee of twenty dollars ($20.00).

(e)  The filing fee shall be waived in a contested case in

which the petition is filed in forma pauperis and supported by such

proofs as are required in G.S. 1-110.  A petitioner seeking to have the filing

fee waived under this Paragraph shall file the appropriate OAH form with the

chief hearings clerk simultaneously when filing the petition for a contested

case.

(f)  The filing fee shall be waived in a contested case

involving a mandated federal cause of action.

(g)  If the filing fee is not paid, or is paid in an

incorrect amount, at the time of filing, the Office of Administrative Hearings

shall notify the petitioner in writing and permit a late payment of the filing

fee to be made within 60 days of the date the petition was filed.  If the

filing fee is not paid and good cause is not shown by the petitioner within the

60 days of the date of filing, the petition shall be dismissed by the Administrative

Law Judge.

(h)  The filing fee shall be reimbursed when applicable in

accordance with Rule .0105(7) of this Section.

(i)  The method of payment of the filing fee shall be:

(1)           cash;

(2)           money order;

(3)           certified check; or

(4)           check drawn on an attorney's trust or

operating account.

 

History Note:        Authority G.S. 150B-23; 150B-23.2;

150B-33;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; November 1, 1987; September

1, 1986;

Emergency Amendment Eff. October 1, 2009;

Temporary Amendment Eff. December 1, 2009;

Amended Eff. June 1, 2014; October 1, 2010.

 

26 NCAC 03 .0104             ORDER FOR PREHEARING STATEMENTS

The administrative law judge may serve all parties with an

Order for Prehearing Statements together with, or after service of, the Notice

of Contested Case Filing and Assignment.  The parties thus served shall, within

30 days of service, file the requested statements setting out the party's

present position on the following:

(1)           The nature of the proceeding and the issues to be

resolved;

(2)           A brief statement of the facts and reasons

supporting the party's position on each matter in dispute;

(3)           A list of proposed witnesses with a brief

description of his or her proposed testimony;

(4)           A description of what discovery, if any, the party

will seek to conduct prior to the contested case hearing and an estimate of the

time needed to complete discovery;

(5)           Venue considerations;

(6)           Estimation of length of the hearing;

(7)           The name, address, and telephone number of the

party's attorney, if any; and

(8)           Other special matters.

 

History Note:        Authority G.S. 150B‑33;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; November 1, 1987.

 

26 NCAC 03 .0105             DUTIES OF THE ADMINISTRATIVE LAW

JUDGE

In conjunction with the powers of administrative law judges

prescribed by G.S. 150B-33 and G.S. 150B-34, the administrative law judge shall

perform the following duties, consistent with law:

(1)           Hear and rule on motions;

(2)           Grant or deny continuances;

(3)           Issue orders regarding prehearing matters,

including directing the appearance of the parties at a prehearing conference;

(4)           Examine witnesses when deemed necessary to make a

complete record and to aid in the full development of material facts in the

case;

(5)           Make preliminary, interlocutory, or other orders as

deemed appropriate;

(6)           Grant dismissal when the case or any part thereof

has become moot or for other reasons;

(7)           Order the State of North Carolina, when it is the

losing party as determined by the presiding Administrative Law Judge, to

reimburse the filing fee to the petitioner; and

(8)           Apply sanctions in accordance with Rule .0114 of

this Section.

 

History Note:        Authority G.S. 7A-751(a); 8C-1, Rule 614;

150B-23.2; 150B-33; 150B-34;

Eff. August 1, 1986;

Amended Eff. April 1, 2001; February 1, 1994; November 1,

1987;

Emergency Amendment Eff. October 1, 2009;

Temporary Amendment Eff. December 1, 2009;

Amended Eff. October 1, 2010;

Temporary Amendment Eff. January 1, 2012;

Amended Eff. November 1, 2012.

 

 

26 NCAC 03 .0106             CONSENT ORDER: SETTLEMENT:

STIPULATION

Informal disposition may be made of a contested case or an

issue in a contested case by stipulation, agreement, or consent order at any

time during the proceedings.  Parties may enter into such agreements on their

own or may ask for a settlement conference with an administrative law judge to

promote consensual disposition of the case.

 

History Note:        Authority G.S. 150B‑31(b);

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0107             SETTLEMENT CONFERENCE

(a)  A settlement conference is for the primary purpose of

assisting the parties in resolving disputes and for the secondary purpose of

narrowing the issues and preparing for hearing.

(b)  A settlement conference shall be held at the request of

any party, the administrative law judge, or the Chief Administrative Law

Judge.  Upon receipt of the request, the Chief Administrative Law Judge shall

assign the case to another administrative law judge for the purpose of conducting

a settlement conference.  Unless both parties and the administrative law judge

agree, a unilateral request for a settlement conference shall not constitute

good cause for a continuance.  The conference shall be conducted at a time and

place agreeable to all parties and the administrative law judge.  It shall be

conducted by telephone if any party would be required to travel more than 50

miles to attend, unless that party agrees to travel to the location set for the

conference.  If a telephone conference is scheduled, the parties must be

available by telephone at the time of the conference.

(c)  All parties shall attend or be represented at a

settlement conference under the same requirements as provided for in a

mediation settlement conference under Rule .0204(a) of this Chapter.  Parties

or their representatives shall be prepared to participate in settlement

discussions.

(d)  The parties shall discuss the possibility of settlement

before a settlement conference if they believe that a reasonable basis for

settlement exists.

(e)  At the settlement conference, the parties shall be

prepared to provide information and to discuss all matters required in Rule

.0104 of this Section.

(f)  If, following a settlement conference, a settlement has

not been reached but the parties have reached an agreement on any facts or

other issues, the administrative law judge presiding over the settlement

conference shall issue an order confirming and approving, if necessary, those

matters agreed upon.  The order is binding on the administrative law judge who

is assigned to hear the case.

 

History Note:        Authority G.S. 7A-751(a); 150B-22; 150B‑31(b);

Eff. August 1, 1986;

Amended Eff. April 1, 2001; February 1, 1994; November 1,

1987; September 1, 1986.

 

26 NCAC 03 .0108             PREHEARING CONFERENCE

(a)  The purpose of the prehearing conference is to simplify

the issues to be determined, to obtain stipulations in regard to foundations

for testimony or exhibits, to obtain stipulations of agreement on nondisputed facts

or the application of particular laws, to consider the proposed witnesses for

each party, to identify and exchange documentary evidence intended to be

introduced at the hearing, to determine deadlines for the completion of any

discovery, to establish hearing dates and locations if not previously set, to

consider such other matters that may be necessary or advisable and, if

possible, to reach a settlement without the necessity for further hearing.  Any

final settlement shall be set forth in a settlement agreement or consent order

and made a part of the record.

(b)  Upon the request of any party or upon the

administrative law judge's own motion, the administrative law judge may hold a

prehearing conference prior to a contested case hearing.  The administrative

law judge may require the parties to file prehearing statements in accordance

with Rule .0104 of this Section.  A prehearing conference shall be an informal

proceeding conducted expeditiously by the administrative law judge. Agreements

on the simplification of issues, amendments, stipulations, or other matters may

be entered on the record or may be made the subject of an order by the

administrative law judge.  Venue for purposes of a prehearing conference shall

be determined in accordance with G.S. 150B‑24.

 

History Note:        Authority G.S. 150B‑33(b)(4),(5);

Eff. August 1, 1986;

Amended Eff. February 1, 1994; April 1, 1990; November 1,

1987.

 

26 NCAC 03 .0109             NOTICE OF HEARING

The content and the manner of service of the Notice of

Hearing shall be as specified in G.S. 150B‑23 (b) and (c).

 

History Note:        Authority G.S. 150B‑23;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; November 1, 1987.

 

26 NCAC 03 .0110             DISQUALIFICATION OF ADMINISTRATIVE

LAW JUDGE

Any party may file an affidavit of personal bias or

disqualification pursuant to G.S. 150B‑32(b).  An administrative law

judge shall withdraw from participation in a contested case if at any time he

deems himself disqualified for any reason.

 

History Note:        Authority G.S. 150B‑32(b);

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0111             CONSOLIDATION OF CASES

(a)  The Chief Administrative Law Judge of the Office of

Administrative Hearings may order a joint hearing of any matters at issue in

contested cases involving common questions of law or fact or multiple

proceedings involving the same or related parties, or may order the cases

consolidated or make other orders to reduce costs or delay in the proceedings.

(b)  A party requesting consolidation shall serve a petition

for consolidation on all parties to the cases to be consolidated and shall file

the original with the Office of Administrative Hearings, together with a

Certificate of Service showing service on all parties as herein required.  Any

party objecting to the petition shall serve and file his objections within 10

days after service of the petition for consolidation.

(c)  Upon determining whether cases should be consolidated,

the Chief Administrative Law Judge shall serve a written order on all parties

which contains a description of the cases for consolidation and the reasons for

the decision.

(d)  Nothing contained in this Rule shall be deemed to

prohibit the parties from stipulating and agreeing to a consolidation which

shall be granted upon submission of a written stipulation signed by all the

parties to the Chief Administrative Law Judge.

(e)  Following receipt of a notice of or order for

consolidation, any party may petition for severance by serving it on all other

parties and filing it with the Office of Administrative Hearings at least seven

days prior to the first scheduled hearing date.  If the Chief Administrative

Law Judge finds that the consolidation will prejudice any party, he shall order

the severance or other relief which will prevent the prejudice from occurring.

 

History Note:        Authority G.S. 150B‑23; 150B‑31;

Eff. August 1, 1986;

Amended Eff. January 1, 1987; September 1, 1986.

 

26 NCAC 03 .0112             DISCOVERY

(a)  Discovery methods are means designed to assist parties

in preparing to meet their responsibilities and protect their rights during

hearings without unduly delaying, burdening or complicating the hearings

process and with due regard to the rights and responsibilities of other parties

and persons affected.  Accordingly, parties are obliged to exhaust all less

formal opportunities to obtain discoverable material before utilizing this

Rule.

(b)  Any means of discovery available pursuant to the North

Carolina Rules of Civil Procedure, G.S. 1A‑1, is allowed.  If the party

from whom discovery is sought objects to the discovery, the party seeking the

discovery may file a motion with the administrative law judge to obtain an

order compelling discovery.  In the disposition of the motion, the party

seeking discovery shall have the burden of showing that the discovery is needed

for the proper presentation of the party's case, is not for purposes of delay,

and that the issues in controversy are significant enough to warrant the

discovery.  In ruling on a motion for discovery, the administrative law judge

shall recognize all privileges recognized at law.

(c)  When a party serves another party with a Request for

Discovery, that request need not be filed with the Office of Administrative

Hearings but shall be served upon all parties.

(d)  The parties in any contested case shall immediately

commence to exchange information voluntarily, to seek access as provided by law

to public documents and to exhaust other informal means of obtaining

discoverable material.

(e)  All discovery shall be completed no later than the

first day of the contested case hearing.  An administrative law judge may

shorten or lengthen the period for discovery and adjust hearing dates

accordingly and, when necessary, allow discovery during the pendency of the

contested case hearing.

(f)  No later than 15 days from receipt of a notice

requesting discovery, the receiving party shall:

(1)           move for relief from the request;

(2)           provide the requested information, material

or access; or

(3)           offer a schedule for reasonable compliance

with the request.

(g)  Sanctions for failure of a party to comply with an

order of the administrative law judge made pursuant to the discovery rules of this

Chapter shall be as provided for by G.S. 1A‑1, Rule 37, to the extent

that an administrative law judge may impose such sanctions, and Rule .0114 of

this Section.

 

History Note:        Authority G.S. 1A‑1, Rule 5; 150B‑28;

150B‑33(b)(3)(4);

Eff. August 1, 1986;

Amended Eff. February 1, 1994; November 1, 1987.

 

26 NCAC 03 .0113             SUBPOENAS

(a)  Subpoenas for the attendance and testimony of witnesses

or for the production of documents, either at a hearing or for the purposes of

discovery, shall be issued in accordance with G.S. 150B‑27 and G.S. 1A‑1,

Rule 45.

(b)  A subpoena shall be served in the manner provided by

G.S. 150B‑27 and G.S. 1A‑1, Rule 45.  The cost of service, fees,

and expenses of any witnesses subpoenaed shall be paid by the party at whose

request the witness appears.  A party seeking an order imposing sanctions for

failure to comply with any subpoena issued under this Rule must prove proper

service of the subpoena.

(c)  Objections to subpoenas shall be heard in accordance

with G.S. 150B‑27 and G.S. 1A‑1, Rule 45.

 

History Note:        Authority G.S. 150B‑27; 150B‑33;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; November 1, 1987.

 

26 NCAC 03 .0114             SANCTIONS

(a)  If a party fails to appear at a hearing or fails to

comply with an interlocutory order of an administrative law judge, the

administrative law judge may:

(1)           Find that the allegations of

or the issues set out in the notice of hearing or other pleading may be taken

as true or deemed proved without further evidence;

(2)           Dismiss or grant the motion

or petition;

(3)           Suppress a claim or defense;

or

(4)           Exclude evidence.

(b)  In the event that any party or attorney at law or other

representative of a party engages in behavior that obstructs the orderly

conduct of proceedings or would constitute contempt if done in the General

Court of Justice, the administrative law judge presiding may enter a show cause

order returnable in Superior Court for contempt proceedings in accordance with

G.S. 150B‑33(b)(8).

 

History Note:        Authority G.S. 150B‑25(a); 150B‑33(b)(8),(10);

Eff. August 1, 1986;

Amended Eff. January 1, 1989; November 1, 1987; March 1,

1987.

 

26 NCAC 03 .0115             MOTIONS

(a)  Any application to the administrative law judge for an

order shall be by motion, which shall be in writing unless made during a

hearing, and must be filed and served upon all parties not less than ten days

before the hearing, if any, is to be held either on the motion or the merits of

the case.  The nonmoving party shall have ten days from the date of service of

the motion to file a response.  A response must be in writing.  Motions

practice in contested cases before the Office of Administrative Hearings shall

be governed by Rule 6 of the General Rules of Practice for the Superior and

District Courts.

(b)  If any party desires a hearing on the motion, he shall

make a request for a hearing at the time of the filing of his motion or

response.  A response shall set forth the nonmoving party's objections.  All

motions in writing shall be decided without oral argument unless an oral

argument is directed by the administrative law judge.  When oral argument is

directed by the administrative law judge, a motion shall be considered

submitted for disposition at the close of the argument.  A hearing on a motion

will be directed by the administrative law judge only if it is determined that

a hearing is necessary to the development of a full and complete record on

which a proper decision can be made.  All orders on such motions, other than

those made during the course of a hearing, shall be in writing and shall be

served upon all parties of record not less than five days before a hearing, if

any, is held.

 

History Note:        Authority G.S. 150B‑33(b);

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0116             TIME

Unless otherwise provided in the rules of the Office of

Administrative Hearings or in a specific statute, time computations in

contested cases before the Office of Administrative Hearings shall be governed

by G.S. 1A‑1, Rule 6.

 

History Note:        Authority G.S. 150B‑33(b)(4);

Eff. August 1, 1986.

 

26 NCAC 03 .0117             INTERVENTION

(a)  Any person not named in the notice of hearing who

desires to intervene in a contested case as a party shall file a timely motion

to intervene and shall serve the motion upon all existing parties.  Timeliness

will be determined by the administrative law judge in each case based on

circumstances at the time of filing.  The motion shall show how the movant's

rights, duties, or privileges may be determined or affected by the contested

case; shall show how the movant may be directly affected by the outcome or that

movant's participation is authorized by statute, rule, or court decision; shall

set forth the grounds and purposes for which intervention is sought; and shall

indicate movant's statutory right to intervene if one should exist.

(b)  Any party may object to the motion for intervention by

filing a written notice of objection with the administrative law judge within

five days of service of the motion if there is sufficient time before the

hearing.  The notice of objection shall state the party's reasons for objection

and shall be served upon all parties.  If there is insufficient time before the

hearing for a written objection, the objection may be made at the hearing.

(c)  When determined to be necessary to develop a full

record on the question of intervention, the administrative law judge may

conduct a hearing on the motion to determine specific standards that will apply

to each intervenor and to define the extent of allowed intervention.

(d)  The administrative law judge shall allow intervention

upon a proper showing under this Rule, unless the administrative law judge

finds that the movant's interest is adequately represented by one or more

parties participating in the case or unless intervention is mandated by statute,

rule, or court decision.  An order allowing intervention shall specify the

extent of participation permitted the intervenor and shall state the

administrative law judge's reasons.  An intervenor may be allowed to:

(1)           File a written brief without acquiring the

status of a party;

(2)           Intervene as a party with all the rights of

a party; or

(3)           Intervene as a party with all the rights of

a party but limited to specific issues and to the means necessary to present

and develop those issues.

 

History Note:        Authority G.S. 150B‑23(d);

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0118             CONTINUANCES

(a)  Requests for a continuance of a hearing shall be

granted upon a showing of good cause or extraordinary cause.  Unless time does

not permit, a request for a continuance of a hearing shall be made in writing

to the administrative law judge and shall be served upon all parties of

record.  In determining whether good cause or extraordinary cause exists, due

regard shall be given to the ability of the party requesting a continuance to

proceed effectively without a continuance.  A request for a continuance filed

within five days of a hearing shall be denied unless the reason for the request

could not have been ascertained earlier.

(1)           "Good cause" includes death or

incapacitating illness of a party, representative, or attorney of a party; a

court order requiring a continuance; lack of proper notice of the hearing; a

substitution of the representative or attorney of a party if the substitution

is shown to be required; a change in the parties or pleadings requiring

postponement; and agreement for a continuance by all parties if either more

time is clearly necessary to complete mandatory preparation for the case, such

as authorized discovery, and the parties and the administrative law judge have

agreed to a new hearing date or the parties have agreed to a settlement of the

case that has been or is likely to be approved by the final decision maker.

(2)           "Good cause" shall not include: 

intentional delay; unavailability of counsel or other representative because of

engagement in another judicial or administrative proceeding unless all other

members of the attorney's or representative's firm familiar with the case are

similarly engaged, or if the notice of the other proceeding was received

subsequent to the notice of the hearing for which the continuance is sought;

unavailability of a witness if the witness testimony can be taken by

deposition, and failure of the attorney or representative to properly utilize

the statutory notice period to prepare for the hearing.

(b)  For the purpose of determining whether

"extraordinary cause" exists to allow a final decision to be issued

beyond 180 days after the commencement of a personnel case under G.S.

126-34.02(a) the phrase “extraordinary cause” is defined as follows: out of the

ordinary; exceeding the usual, average, or normal measure or degree; not usual,

regular, or of a customary kind. "Extraordinary cause" includes:

(1)           a stay issued by a federal or state trial

or appellate judge;

(2)           a stay issued by an administrative law

judge under G.S. 150B-33(a); or

(3)           a pending OAH civil rights investigation

which addresses the same issues of discrimination as the subject matter of

the contested case when the OAH investigation has not  been pending in the

Civil Rights Division longer than 90 days.

"Extraordinary cause" shall not be granted for any

cause listed in Subparagraph (a)(2) of this Rule.

(c)  A continuance for good cause shall not be granted when

to do so would prevent the case from being concluded within any statutory or

regulatory deadline.

(d)  During a hearing, if it appears in the interest of

justice that further testimony should be received and sufficient time does not

remain to conclude the testimony, the administrative law judge shall either

order the additional testimony taken by deposition or continue the hearing to a

future date for which oral notice on the record is sufficient.

 

History Note:        Authority G.S. 126-34.02; 150B‑33(b)(4);



Eff. August 1, 1986;

Amended Eff. November 1, 1987;

Temporary Amendment Eff. March 1, 2014;

Amended Eff. February 1, 2015.

 

26 NCAC 03 .0119             SECURE LEAVE PERIODS FOR ATTORNEYS

(a)  Any attorney may designate one or more secure leave

periods each year as provided in this Rule.

(b)  Length, Number. A secure leave period shall consist of

one or more complete calendar weeks. During any calendar year, an attorney's

secure leave periods pursuant to this Rule shall not exceed, in the aggregate,

three calendar weeks.

(c)  Designation, Effect. To designate a secure leave period

an attorney shall file a written designation containing the information

required by Paragraph (d) with the Chief Hearings Clerk. The designation shall

be filed:

(1)           no later than 90 days before the beginning

of the secure leave period; and

(2)           before any argument or other proceeding

before an administrative law judge has been scheduled for a time during the

designated secure leave period.

Upon such filing, the secure leave period so designated

shall be deemed allowed without further action by the presiding administrative

law judge, and the attorney shall not be required to appear at any argument or

other administrative proceeding during that secure leave period.

(d)  Content of Designation. The designation shall contain

the following information:

(1)           the attorney's name, address, telephone

number and state bar number;

(2)           the date of the Monday on which the secure

leave period is to begin and of the Friday on which it is to end;

(3)           the dates of all other secure leave periods

during the current calendar year that have previously been designated by the

attorney pursuant to this Rule;

(4)           a statement that the secure leave period is

not being designated for the purpose of delaying, hindering or interfering with

the timely disposition of any matter in any pending action or proceeding; and

(5)           a statement that no argument or other

proceeding has been scheduled during the designated secure leave period in any

matter pending before an administrative law judge in which the attorney has

entered an appearance.

 

History Note:        Authority G.S. 7A-750; 150B-40(c);

Eff. August 1, 2000.

 

26 NCAC 03 .0120             RIGHTS AND RESPONSIBILITIES OF

PARTIES

(a)  A party shall have all evidence to be presented, both

oral and written, available on the date for hearing.  In cases when the hearing

time is expected to exceed one day, the parties shall be prepared to present

their evidence at the date and time ordered by the administrative law judge or

agreed upon at a prehearing conference.

(b)  The administrative law judge shall send copies of all

orders or decisions to all parties simultaneously.  Any party sending a letter,

exhibit, brief, memorandum, or other document to the administrative law judge

shall simultaneously send a copy to all other parties.

(c)  All parties have the continuing responsibility to

notify the Office of Administrative Hearings of their current address and

telephone number.

(d)  A party may represent himself or be represented by an

attorney.  If a party has notified other parties of that party's representation

by an attorney, all communications shall be directed to that attorney.

(e)  With prior notice to the administrative law judge, any

person may offer testimony or other evidence relevant to the case.  Any

nonparty offering testimony or other evidence may be questioned by parties to

the case and by the administrative law judge.

(f)  Prior to issuing a decision, the administrative law

judge may order any party to submit proposed findings of fact and written

arguments.

(g)  The Administrative Law Judge may allow remote

participation via audio or video conference by participant(s) subject to

available services at the hearing location.  Requests for remote participation

shall be made at least seven days in advance and are subject to equipment,

staff, and scheduling availability.

 

History Note:        Authority G.S. 7A-751(a); 150B‑25;

150B‑33; 150B-34;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; April 1, 1990; November 1,

1987;

Recodified from Rule .0119 Eff. August 1, 2000;

Amended Eff. May 1, 2009; April 1, 2001;

Pursuant to G.S. 150B-33(b)(9), Administrative Law Judge

Augustus B. Elkins, II declared Rule 26 NCAC 03 .0120(d) void as applied in

Abundant Life Child Care Center, Tiffany D. Monroe v. Division of Child

Development, June Locklear, Brenda Faircloth (08 DHR 2954).

 

26 NCAC 03 .0121             WITNESSES

Any party may be a witness and may present witnesses on the

party's behalf at the hearing.  All oral testimony at the hearing shall be

under oath or affirmation and shall be recorded.  At the request of a party or

upon the administrative law judge's own motion, the administrative law judge

may exclude witnesses from the hearing room so that they cannot hear the

testimony of other witnesses.

 

History Note:        Authority G.S. 150B‑25(c)(d); 150B‑33(4);

150B‑37(b);

Eff. August 1, 1986;

Amended Eff. November 1, 1987;

Recodified from Rule .0120 Eff. August 1, 2000.

 

26 NCAC 03 .0122             EVIDENCE

The North Carolina Rules of Evidence as found in Chapter 8C

of the General Statutes shall govern in all contested case proceedings, except

as provided otherwise in these Rules and G.S. 150B‑29.

(1)           The administrative law judge may admit all evidence

that has probative value.  Irrelevant, incompetent, and immaterial or unduly

repetitious evidence shall be excluded.  An administrative law judge may, in

his discretion, exclude any evidence if its probative value is substantially outweighed

by the risk that its admission will:

(a)           necessitate undue consumption of time; or

(b)           create substantial danger of undue prejudice

or confusion.

(2)           Contemporaneous objections by a party or a party's

attorney are not required in the course of a hearing to preserve the right to

object to the consideration of evidence by the administrative law judge in

reaching a decision or by the court upon judicial review.

(3)           All evidence to be considered in the case,

including all records and documents or a true and accurate photocopy, shall be

offered and made a part of the record in the case.  No other factual

information or evidence shall be considered in the determination of the case. 

Documentary evidence incorporated by reference may be admitted only if the

materials so incorporated are available for examination by the parties.

(4)           Documentary evidence in the form of copies or

excerpts may be received in the discretion of the administrative law judge or

upon agreement of the parties.  Copies of a document shall be received to the

same extent as the original document unless a genuine question is raised about

the accuracy or authenticity of the copy or, under the circumstances, it would

be unfair to admit the copy instead of the original.

(5)           The administrative law judge may take notice of

judicially cognizable facts by entering a statement of the noticed fact and its

source into the record.  Upon timely request, any party shall be given the

opportunity to contest the facts so noticed through submission of evidence and

argument.

(6)           A party may call an adverse party or an officer,

director, managing agent, or employee of the state or any political subdivision

thereof or of a public or private corporation or of a partnership or

association or body politic which is an adverse party, and interrogate that

party by leading questions and contradict and impeach that party on material

matters in all respects as if that party had been called by the adverse party. 

The adverse party may be examined by that party's counsel upon the subject

matter of that party's examination in chief under the rules applicable to

direct examination, and may be cross‑examined, contradicted, and

impeached by any other party adversely affected by the testimony.

 

History Note:        Authority G.S. 150B‑33(b)(4); 150B‑29;

Eff. August 1, 1986;

Amended Eff. November 1, 1987; March 1, 1987;

Recodified from Rule .0121 Eff. August 1, 2000.

 

26 NCAC 03 .0123             OFFICIAL RECORD

(a)  The official record of a contested case shall be

available for public inspection upon request.  An administrative law judge may,

consistent with law, order part or all of an official record sealed.

(b)  The official record shall be prepared in accordance

with G.S. 150B‑37(a).

(c)  Contested case hearings shall be recorded either by a

four‑track recording system or a court reporter using stenomask or

stenotype.

(d)  Transcript costs incurred shall be divided equally among

the party(ies) requesting a transcript.

(e)  Any other costs incurred when using a court reporter

shall be divided equally among the requesting party(ies).

(f)  A 24 hour cancellation notice is required in all

cases.  The party(ies) responsible for the cancellation are liable for any

cancellation fees.

(g)  Transcripts of proceedings during which oral evidence

is presented shall be made only upon request of a party.  OAH shall contract

with an independent contractor to provide transcript services. Transcript

requests must be made to the independent contractor.  The name and phone number

of the independent contractor may be obtained by calling the Office of

Administrative Hearings.  Transcript costs shall be provided to the requesting

party by the independent contractor.  An attorney requesting a transcript on

behalf of a party shall be a guarantor of payment of the cost.   The

independent contractor may require an advance security deposit to cover the

prospective cost.

(h)  Copies of recordings are available upon written request

at a cost set out in 26 NCAC 01 .0103.

(i)  Copies of OAH Hearings recordings or non‑OAH certified

transcripts therefrom are not part of the official record.

Note:  Rule 5.3(B) of the Rules of Professional Conduct

permits an attorney to advance or guarantee expenses of litigation provided the

client remains ultimately liable for such expenses.

 

History Note:        Authority G.S. 150B‑37;

Eff. August 1, 1986;

Amended Eff. August 1, 1998; April 1, 1990; February 1,

1989; November 1, 1987;

September 1, 1986;

Recodified from Rule .0122 Eff. August 1, 2000;

Amended Eff. April 1, 2009.

 

26 NCAC 03 .0124             VENUE

Venue in a contested case shall be determined in accordance

with G.S. 150B‑24.

 

History Note:        Authority G.S. 150B‑24;

Eff. August 1, 1986;

Recodified from Rule .0123 Eff. August 1, 2000.

 

26 NCAC 03 .0125             CONDUCT OF HEARING

Hearings shall be conducted, as nearly as practical, in

accordance with the practice in the Trial Division of the General Court of

Justice.

 

History Note:        Authority G.S. 150B‑11; 150B‑25;

150B‑33;

Eff. August 1, 1986;

Recodified from Rule .0124 Eff. August 1, 2000.

 

26 NCAC 03 .0126             HEARING OFFICER'S PROPOSAL FOR

DECISION: EXCEPTIONS

 

History Note:        Authority G.S. 150B‑34;

Eff. August 1, 1986;

Temporary Repeal Eff. August 26, 1987 For a Period of 120

Days to Expire on December 24, 1987;

Temporary Repeal Eff. December 24, 1987 For a Period of 8

Days to Expire on January 1, 1988;

Repealed Eff. January 1, 1988;

Recodified from Rule .0125 Eff. August 1, 2000.

 

26 NCAC 03 .0127             ADMINISTRATIVE LAW JUDGE'S DECISION

(a)  An administrative law judge shall issue a final decision

or order in a contested case within 45 days after the later of the date the

administrative law judge receives any proposed findings of fact and written

arguments submitted by the parties and the date the contested case hearing

ends.

(b)  An administrative law judge's final decision shall be

based exclusively on:

(1)           competent evidence and arguments presented

during the hearing and made a part of the official record;

(2)           stipulations of fact;

(3)           matters officially noticed;

(4)           any proposed findings of fact and written

arguments submitted by the parties under Paragraph (g) of Rule .0119 of this

Section; and

(5)           other items in the official record that are

not excluded by G.S. 150B-29(b).

(c)  An administrative law judge's final decision shall

fully dispose of all issues required to resolve the case and shall contain:

(1)           a caption;

(2)           the appearances of the parties;

(3)           a statement of the issues;

(4)           references to specific statutes or rules at

issue;

(5)           findings of fact;

(6)           conclusions of law based on the findings of

fact and applicable constitutional principles, statutes, rules, or federal

regulations;

(7)           in the discretion of the administrative law

judge, a memorandum giving reasons for his findings of fact and conclusions of

law; and

(8)           a statement that each party has the right

to file an appeal of the administrative law judge's final decision by filing a

Petition for Judicial Review in the Superior Court of Wake County or in the

Superior Court of the county in which the party resides, or, where applicable

pursuant to G.S. 7A-29(a), a Notice of Appeal to the Court of Appeals.

(d)  The chief administrative law judge may extend the 45-day

time limit for issuing a decision.  An administrative law judge who needs an

extension must submit a request for extension to the chief administrative law

judge before the 45-day period has expired.

 

History Note:        Authority G.S. 7A-751(a); 150B-34; 150B-47;

Eff. August 1, 1986;

Temporary Amendment Eff. August 26, 1987 For a Period of

120 Days to Expire on December 24, 1987;

Temporary Amendment Eff. December 24, 1987 For a Period

of 8 Days to Expire on January 1, 1988;

Amended Eff. February 1, 1994; October 1, 1991; April 1,

1990; January 1, 1989;

Recodified from Rule .0126 Eff. August 1, 2000;

Amended Eff. April 1, 2001;

Temporary Amendment Eff. January 1, 2012;

Amended Eff. November 1, 2012.

 

26 NCAC 03 .0128             EX PARTE COMMUNICATIONS

Ex parte communications in a contested case are governed by

G.S. 150B‑35.

 

History Note:        Authority G.S. 150B‑35;

Eff. August 1, 1986;

Recodified from Rule .0127 Eff. August 1, 2000.

 

26 NCAC 03 .0129             RECONSIDERATION OR REHEARING

After an administrative law judge issues a decision in a

contested case, the administrative law judge loses jurisdiction to amend the

decision except to correct clerical or mathematical errors.

 

History Note:        Authority G.S. 7A‑750; 7A-751(a);

150B-34;

Eff. August 1, 1986;

Amended Eff. November 1, 1987; January 1, 1987;

Recodified from Rule .0128 Eff. August 1, 2000;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0130             AVAILABILITY OF COPIES

These Rules and copies of all matters adopted by reference

herein are available from the Office of Administrative Hearings at the cost

established in 26 NCAC 1 .0103.

 

History Note:        Authority G.S. 150B‑14; 150B‑62(b);

150B‑63(f);

Eff. August 1, 1986;

Amended Eff. January 1, 1991;

Recodified from Rule .0129 Eff. August 1, 2000.

 

26 NCAC 03 .0131             FINAL DECISIONS IN CONTESTED CASES

A copy of a final decision issued by an administrative law

judge shall be served on each party in accordance with Rule .0102(a)(3) and (b)

through (f) of this Section.

 

History Note:        Authority G.S. 150B-45;

ARRC Objection Lodged November 17, 1988;

Eff. April 1, 1989;

ARRC Objection Removed Eff. April 1, 1990;

Amended Eff. October 1, 1991; April 1, 1990;

Recodified from Rule .0130 Eff. August 1, 2000;

Temporary Amendment Eff. January 1, 2012;

Amended Eff. November 1, 2012.

 

SECTION .0200 ‑ MEDIATION SETTLEMENT CONFERENCE

 

26 NCAC 03 .0201             ORDER FOR MEDIATED SETTLEMENT

CONFERENCE

(a)  Order by Chief Administrative Law Judge.  The Chief

Administrative Law Judge may, by written order, require parties and their

representatives to attend a pre‑hearing mediated settlement conference in

any contested case.

(b)  Timing of the Order.  The Chief Administrative Law

Judge may issue the order within 10 days of the filing of the contested case

petition.  Paragraph (c) of this Rule and Paragraph (b) of Rule .0203 of this

Section shall govern the content of the order and the date of completion of the

conference.

(c)  Content of Order.  The Chief Administrative Law Judge's

order shall:

(1)           require the mediated settlement conference

be held in the contested case;

(2)           establish a deadline for the completion of

the conference;

(3)           state that the parties have the right to

select their own mediator as provided in Paragraph (a) of Rule .0202 of this

Section;

(4)           state the rate of compensation of the

mediator appointed by the presiding Administrative Law Judge pursuant to

Paragraph (c) of Rule .0202 of this Section in the event that the parties do

not exercise their right to select a mediator; and

(5)           state that the parties shall be required to

pay the mediator's fee at the conclusion of the settlement conference unless

otherwise apportioned by the presiding Administrative Law Judge.

(d)  Motion to Dispense with Mediated Settlement

Conference.  A party may move the presiding Administrative Law Judge, within 10

days after the date of the Chief Administrative Law Judge's order, to dispense

with the conference.  Such motion shall state the reasons the relief is

sought.  For good cause shown, the presiding Administrative Law Judge may grant

the motion.

(e)  Motion for Mediated Settlement Conference.  In

contested cases not ordered to mediated settlement conference, any party may

move the presiding Administrative Law Judge to order such a conference.  Such

motion shall state the reasons why the order should be allowed and shall be

served on non‑moving parties.  Objections may be filed in writing with

the presiding Administrative Law Judge within 10 days after the date of the

service of the motion.  Thereafter, the presiding Administrative Law Judge

shall rule upon the motion without a hearing and notify the parties or their

attorneys of the ruling.  In the event that mediation is ordered, the parties

may select a mediator by agreement as provided in Paragraph (a) of Rule .0202

of this Section within 21 days of the date of the presiding Administrative Law

Judge's order.  If the parties cannot agree or have failed to select a mediator

within the 21 days, the presiding Administrative Law Judge shall appoint a

certified mediator pursuant to Paragraph (c) of Rule .0202 of this Section.

 

History Note:        Authority G.S. 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. October 1, 2009.

 

26 NCAC 03 .0202             SELECTION OF MEDIATOR

(a)  Selection of Certified Mediator by Agreement of

Parties.  The parties may select a certified mediator by agreement within 21

days of the Chief Administrative Law Judge's order.  The petitioner or

petitioner's attorney shall file with the Office of Administrative Hearings a

Notice of Selection of Mediator by Agreement within 21 days of the Chief

Administrative Law Judge's order, however, any party may file the notice.  Such

notice shall include: the name, address and telephone number of the mediator

selected; the rate of compensation of the mediator; the agreement of the

parties as to the selection of the mediator and rate of compensation; and that

the mediator is certified pursuant to these Rules.

(b)  The presiding Administrative Law Judge shall appoint

mediators certified by the Dispute Resolution Commission pursuant to Paragraph

(c) of this Rule.

(c)  Appointment of Mediator by the presiding Administrative

Law Judge.  If the parties cannot agree upon the selection of a mediator, the petitioner

or petitioner's attorney shall so notify the presiding Administrative Law Judge

and request by motion, on behalf of all parties, that the presiding

Administrative Law Judge appoint a mediator.  The motion must be filed within

21 days of the date of the Chief Administrative Law Judge's order and shall

state that the parties have had a full and frank discussion concerning the

selection of a mediator and have been unable to agree. Upon receipt of a motion

to appoint a mediator, or failure of the parties to file a Notice of Selection

with the presiding Administrative Law Judge within 21 days of the Chief

Administrative Law Judge's order, the presiding Administrative Law Judge shall

appoint a mediator, certified pursuant to these Rules, who has expressed a

willingness to mediate contested cases. 

(d)  Mediator Information Directory.  To assist the parties

in the selection of a mediator by agreement, the Office of Administrative

Hearings shall prepare and keep current a list of certified mediators who wish

to mediate contested cases. The list shall be kept in the Office of

Administrative Hearings and made available to the parties upon request.

(e)  Disqualification of Mediator.  Any party may move for

an order disqualifying the mediator.  For good cause, such order shall be

entered.  If the mediator is disqualified, a replacement mediator shall be

selected by the parties or appointed by the presiding Administrative Law Judge

pursuant to this Rule.  Nothing in this Paragraph shall preclude mediators from

disqualifying themselves.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. October 1, 2009; April 1, 2001.

 

26 NCAC 03 .0203             MEDIATION SETTLEMENT CONFERENCE

(a)  Where Conference is to be Held.  Unless all parties and

the mediator otherwise agree, the mediated settlement conference shall be held

in the courthouse or other public building in the county where the contested

case is pending.  The mediator shall reserve a place and make arrangements for

the conference and give timely notice to all attorneys and unrepresented

parties of the time and location of the conference.

(b)  When Conference is to be Held.  The Chief

Administrative Law Judge's order issued pursuant to Paragraph (b) of Rule .0201

of this Section shall clearly state a date of completion for the conference. 

Such date shall not be less than 90 days or more than 120 days after the

issuance of the Chief Administrative Law Judge's order.  The Chief

Administrative Law Judge may shorten these time limits in order to meet

statutorily imposed deadlines for the hearing of certain types of contested

cases.

(c)  Request to Extend Date of Completion.  A party, or the

mediator, may request the presiding Administrative Law Judge to extend the

deadline for completion of the conference.  Such request shall state the

reasons the continuance is sought and shall be served by the moving party upon

the other parties and the mediator.  The presiding Administrative Law Judge may

grant the request and enter an order setting a new date for the completion of

the conference, which date may be set at any time prior to hearing.  Such order

shall be served upon the parties and the mediator.

(d)  Recesses.  The mediator may recess the conference at

any time and may set times for reconvening. If the time for reconvening is set

before the conference is recessed, no further notification is required for

persons present at the recessed conference.

(e)  The Mediated Settlement Conference Is Not To Delay

Other Proceedings.  The mediated settlement conference shall not be cause for

the delay of other proceedings in the contested case, including the completion

of discovery, the filing or hearing of motions, or the hearing of the contested

case, except by order of the presiding Administrative Law Judge.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0204             DUTIES OF PARTIES, REPRESENTATIVES,

AND ATTORNEYS

(a)  Attendance.  The following persons shall physically

attend a mediated settlement conference:

(1)           All individual parties, or an officer or

employee or agent of a party who is not a natural person who is not the party's

outside counsel and who has been authorized to decide on behalf of the party

whether and on what terms to settle the contested case; or in the case of a

governmental entity, an employee or agent who is not the party's outside

counsel and who has authority to decide on behalf of the party whether and what

terms to settle the contested case; provided if under law proposed settlement

terms can be approved only by a Board, the representative shall have authority

to negotiate on behalf of the party and to make a recommendation to that Board;

(2)           At least one counsel of record for each

party or other participant whose counsel has appeared in the contested case;

and

(3)           For any insured party against whom a claim

is made, a representative of the insurance carrier who is not the carrier's

outside counsel and who has authority to make a decision on behalf of the

carrier or who has been authorized to negotiate on behalf of the carrier and

can promptly communicate during the conference with persons who have the

decision-making authority.

(b)  Any party or person required to attend a mediated

settlement conference shall physically attend until an agreement is reduced to

writing and signed as provided in Paragraph (c) of this Rule or an impasse has

been declared.  The party or person may have the attendance requirement excused

or modified including the allowance of that party's or person's participation

without physical attendance by order of the presiding Administrative Law Judge,

upon motion of a party and notice to all parties and persons required to attend

and the mediator, or by agreement of all parties and persons required to attend

and the mediator.

(c)  Finalizing Agreement.  If an agreement is reached in

the conference parties shall reduce its terms to writing and sign it along with

their counsel.  By stipulation of one or more of the parties and at their

expense, the agreement may be electronically recorded.  A consent judgment,

voluntary dismissals, or withdrawal of petition shall be filed with the Office

of Administrative Hearings by the persons the parties designate.

(d)  Payment of Mediator's Fee.  The parties shall pay the

mediator's fee as provided by Rule .0207 of this Section.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. October 1, 2009; April 1, 2001.

 

26 NCAC 03 .0205             SANCTIONS FOR FAILURE TO ATTEND

If a party or other person required to attend a mediated

settlement conference fails to attend without good cause, the presiding

Administrative Law Judge may impose upon the party or person any appropriate monetary

sanction including, but not limited to, the payment of fines, attorneys fees,

mediator fees, expenses and loss of earnings incurred by persons attending the

conference as authorized by G.S. 150B-33(b)(8) or (10).  A party seeking

sanctions against another party or person shall do so in a written motion

stating the grounds for the motion and the relief sought.  The motion shall be

served upon all parties and on any person against whom sanctions are being

sought.  If the presiding Administrative Law Judge imposes sanctions, it shall

do so, after notice and a hearing, in a written order, making findings of fact

supported by substantial evidence and conclusions of law.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. October 1, 2009; April 1, 2001.

 

26 NCAC 03 .0206             AUTHORITY AND DUTIES OF MEDIATORS

(a)  Authority of Mediator.

(1)           Control of Conference.  The mediator shall

at all times be in control of the conference and the procedures to be followed.

(2)           Private Consultation.  The mediator may communicate

privately with any participant or counsel prior to and during the conference. 

The fact that private communications have occurred with a participant shall be

disclosed to all other participants at the beginning of the conference.

(3)           Scheduling the Conference.  The mediator

shall make a good faith effort to schedule the conference at a time that is

convenient with the participants, attorneys and mediator.  In the absence of

agreement, the mediator shall select the date for the conference.

(b)  Duties of Mediator.

(1)           The mediator shall define and describe the

following at the beginning of the conference:

(A)          The process of mediation;

(B)          The differences between mediation and other forms of

conflict resolution;

(C)          The costs of the mediated settlement conference;

(D)          The fact that the mediated settlement conference is

not a hearing, the mediator is not a judge, and the parties retain their right

to a hearing if they do not reach settlement;

(E)           The circumstances under which the mediator may meet

and communicate privately with any of the parties or with any other person;

(F)           Whether and under what conditions communications

with the mediator will be held in confidence during the conference;

(G)          The inadmissibility of conduct and statements as

provided by Rule 408 of the North Carolina Rules of Evidence;

(H)          The duties and responsibilities of the mediator and

the participants; and

(I)            The fact that any agreement reached will be

reached by mutual consent.

(2)           Disclosure.  The mediator shall be

impartial and advise all participants of any circumstances bearing on possible

bias, prejudice or partiality.

(3)           Declaring Impasse.  It is the duty of the

mediator to determine that an impasse exists, and that the conference should

end.

(4)           Reporting Results of Conference.  The

mediator shall file a written report with the parties and presiding

Administrative Law Judge within 10 days as to whether or not agreement was

reached by the parties.  If an agreement was reached, the report shall state

whether the action will be concluded by consent judgment, voluntary dismissal,

or withdrawal of petition and shall identify the persons designated to file

such pleadings.  The mediator's report shall inform the presiding

Administrative Law Judge of the absence of any party, attorney, or insurance

representative known to the mediator to have been absent from the mediated

settlement conference without permission. 

(5)           Scheduling and Holding the Conference.  The

mediator shall schedule the conference and conduct it prior to the conference

completion deadline set out in the Chief Administrative Law Judge's order. 

Deadlines for completion of the conference shall be observed by the mediator

unless said time limit is changed by a written order of the presiding

Administrative Law Judge.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. October 1, 2009; April 1, 2001.

 

26 NCAC 03 .0207             COMPENSATION OF THE MEDIATOR

(a)  By Agreement.  When the mediator is stipulated to by

the parties, compensation shall be as agreed upon between the parties and the

mediator.

(b) By Order.  When the mediator is appointed by the Office

of Administrative Hearings, the mediator shall be compensated by the parties at

the uniform hourly rate and a one-time, per contested case, administrative fee,

due upon appointment, as set by the Chief Administrative Law Judge except as

provided by Paragraph (d) of this Rule.  The Chief Administrative Law Judge

shall set the rate at the same rate set by Rule 7 of the Rules of the North

Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences

in Superior Court Civil Actions.

(c)  Change of Appointed Mediator.  Pursuant to Rule .0202

of this Section, the parties have 21 days to select a mediator. Parties who

fail to select a mediator within that time frame and then desire a substitution

after the presiding Administrative Law Judge has appointed a mediator, shall

obtain approval from the presiding Administrative Law Judge for the

substitution.  If the presiding Administrative Law Judge approves the

substitution, the parties shall pay the presiding Administrative Law Judge's

original appointee the one time, per case administrative fee provided for in

Paragraph (b) of this Rule.

(d)  Indigent Cases.  No party found to be indigent by the

presiding Administrative Law Judge shall be required to pay a mediator fee. 

Any mediator conducting a settlement conference pursuant to these Rules shall

waive the payment of fees from parties found by the presiding Administrative

Law Judge to be indigent.  Any party may move the presiding Administrative Law

Judge for a finding of indigence and to be relieved of the obligation to pay

that party's share of the mediator's fee.  Such motion shall be heard

subsequent to the completion of the conference or, if the parties do not settle

their contested case, subsequent to the conclusion of the contested case

hearing but prior to the issuance of the Administrative Law Judge's decision. 

In ruling upon such motions, the presiding Administrative Law Judge shall apply

the criteria enumerated in G.S. 1-110(a), but shall take into consideration the

outcome of the contested case, and whether a decision was rendered in movant's

favor.  The presiding Administrative Law Judge shall enter an order granting or

denying a party's request.

(e)  Postponement and Fees.  As used in this Paragraph, the

term "postponement" shall mean reschedule or not proceed with a

settlement conference once a date for the settlement conference has been

scheduled by the mediator.  After a settlement conference has been scheduled

for a specific date, a party may not unilaterally postpone the conference.  A

conference session may be postponed by the mediator for good cause beyond the

control of the moving participant(s) only after notice by the movant to all

parties of the reason for the postponement, and a finding of good cause by the

mediator.  Without a finding of good cause, a mediator may also postpone a

scheduled conference session with the consent of all parties.  Postponement

fees shall be paid by the party requesting the postponement unless otherwise

agreed to between the parties.  Postponement fees are in addition to the one

time, per case administrative fee provided for in Paragraph (b) of this Rule. 

The Chief Administrative Law Judge will set the rate at the same rate set by

Rule 7 of the Rules of the North Carolina Supreme Court Implementing Statewide

Mediated Settlement Conferences in Superior Court Civil Actions.

(f)  Payment of Compensation by Parties.  Unless otherwise

agreed to by the parties or ordered by the presiding Administrative Law Judge,

mediator's fee shall be paid in equal shares by the parties.  For purposes of

this Rule, multiple parties shall be considered one party when they are

represented by the same counsel.  Parties obligated to pay a share of the costs

shall pay them equally.  Payment shall be due upon completion of the conference

unless there is a pending motion for determination of indigency.  In such case,

payment shall be due upon a ruling on the motion.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. October 1, 2009; April 1, 2001.

 

26 NCAC 03 .0208             MEDIATOR

For purposes of this Section the term

"certified mediator" shall mean a person who is currently certified

as a mediator by the Administrative Office of the Courts pursuant to Rule 8 of

Rules of the North Carolina Supreme Court Implementing Statewide Mediated

Settlement Conferences in Superior Court Civil Actions, 329 N.C. 795, effective

December 1, 1993 and as may be subsequently amended.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

SECTION .0300 - EXPEDITED HEARING PROCEDURES FOR COMPLEX

CONTESTED CASES

 

26 NCAC 03 .0301             ORDER DESIGNATING COMPLEX CONTESTED

CASES

26 NCAC 03 .0302             FACTORS TO BE CONSIDERED

26 NCAC 03 .0303             VENUE

26 NCAC 03 .0304             EXPEDITED HEARING PROCEDURES FOR

COMPLEX CONTESTED CASES

26 NCAC 03 .0305             RULES AND PROCEDURES

 

History Note:        Authority G.S. 150B-31(b);

Eff. April 1, 1997;

Repealed Eff. November 1, 2012.

 

Section .0400 – simplified procedures for medicaid applicant

and recipient appeals

 

26 NCAC 03 .0401             MEDICAID hearing procedures rules

(a)  The rules in 26 NCAC 03 .0100 apply to contested

Medicaid cases commenced by Medicaid applicants or recipients under S.L.

2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13 except:

(1)           26 NCAC 03 .0101(b);

(2)           26 NCAC 03 .0102(a)(3), (b) – (e);

(3)           26 NCAC 03 .0103(a);

(4)           26 NCAC 03 .0104;

(5)           26 NCAC 03 .0107;

(6)           26 NCAC 03 .0108;

(7)           26 NCAC 03 .0109;

(8)           26 NCAC 03 .0112(b), (c), (e), (f), (g);

(9)           26 NCAC 03 .0115;

(10)         26 NCAC 03 .0117;

(11)         26 NCAC 03 .0118;

(12)         26 NCAC 03 .0120(e);

(13)         26 NCAC 03 .0123;

(14)         26 NCAC 03 .0124;

(15)         26 NCAC 03 .0125; and

(16)         26 NCAC 03 .0127(a).

(b)  Nothing in this Section affects discretionary powers

granted to an administrative law judge as set out in G.S. 150B-33(b).

 

History Note:        Authority G.S. 7A-751(a); S.L. 2008-107,

s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13;

Temporary Adoption Eff. December 2, 2008;

Eff. August 1, 2009;

Amended Eff. April 1, 2014; November 1, 2012.

 

26 NCAC 03 .0402             mediation settlement conference

rules

The rules in 26 NCAC 03 .0200 do not apply to contested

Medicaid cases commenced by Medicaid applicants or recipients under S.L.

2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13.

 

History Note:        Authority G.S. 7A-751(a); S.L. 2008-107,

s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13;

Temporary Adoption Eff. December 2, 2008;

Eff. August 1, 2009.

 

26 NCAC 03 .0403             expedited hearings procedures for

complex contested cases

 

History Note:        Authority G.S. 7A-751(a); S.L. 2008-107,

s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13;

Temporary Adoption Eff. December 2, 2008;

Eff. August 1, 2009;

Repealed Eff. November 1, 2012.