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.
