Section .0100 ‑ Location


Published: 2015

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CHAPTER 40 ‑ BOARD OF OPTICIANS

 

 

SECTION .0100 ‑ LOCATION

 

 

21 NCAC 40 .0101             LOCATION AND FUNCTION

The Board is physically located at 222 North Person Street,

Raleigh, North Carolina 27601.  Its mailing address is Post Office Box 25336,

Raleigh, North Carolina 27611-5336.  The State Board of Opticians is created

and operated pursuant to Article 17, Chapter 90, of the General Statutes of

North Carolina for the purpose of regulating the training, education,

examination and practice of dispensing opticians. Its functions include the

following:

(1)           monitoring the location and activities of

apprentices, interns, licensees and places where dispensing takes place;

(2)           examining applicants for licenses with and without

examination; and

(3)           investigating and prosecuting complaints against

licensees and unlicensed persons.

 

History Note:        Authority G.S. 90‑239;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Amended Eff. January 1, 1994; February 1, 1989; November

1, 1981.

 

 

21 NCAC 40 .0102             MAILING

ADDRESS OF REGISTRANTS

21 NCAC 40 .0103             CHANGE OF LOCATION

 

History Note:        Authority G.S. 93B‑3; 90‑234

through 90‑255;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Repealed Eff. November 1, 1981.

 

 

 

21 ncac 40 .0104             INFORMATION AND APPLICATION

(a)  Any person desiring to become a North Carolina licensed

optician may obtain information on licensure and an application form by

download from the Board webpage.  Application forms must be completed in order

to be considered for licensure by waiver of the examination, or to sit for the

licensure examination.

(b)  Any person not able to download licensure information,

or the licensure or examination application, may request that the Board office

mail the materials which the Board will subsequently mail to the requesting

person. 

(c)  When submitting an application for licensure or

examination, the applicant shall submit all applicable fees as set out in 21

NCAC 40 .0108.  Additionally, the applicant shall provide:

(1)           information, including an affirmation

regarding whether the applicant has violated G.S. 90, Article 17, or Title 21,

Chapter 40, of the North Carolina Administrative Code, or been convicted of a

felony or misdemeanor,

(2)           information as to whether the applicant has

been named as a defendant or respondent to a lawsuit involving fraud, deceit,

or misrepresentation; malpractice, unethical conduct, gross negligence, or

gross misconduct, and

(3)           the applicant's age.

(d)  Additionally, the applicant shall include the following

when submitting the application:

(1)           evidence of qualifications to comply with

G.S. 90-237 or G.S. 90-241, whichever applicable, and

(2)           a passport-size photograph taken within six

months of the date the application is submitted to the Board.

 

History Note:        Authority G.S. 90‑237; 90-239; 90‑240;

90-249(6); 90‑249.1(a)(8);

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Amended Eff. September 1, 2012; August 1, 1998; February

1, 1989; February 1, 1988; November 1, 1981.

 

21 NCAC 40 .0105             CERTIFICATE OF REGISTRATION

 

History Note:        Authority G.S. 90‑234; 90‑249;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Repealed Eff. November 1, 1981.

 

 

 

21 NCAC 40 .0106             COPY OF THE LAW

A copy of the laws and rules governing the practice of

opticianry in North Carolina is available from the Board at a charge of ten

dollars ($10.00).

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Amended Eff. February 1, 1989; November 1, 1981.

 

 

 

21 NCAC 40 .0107             INSPECTION OF MATERIALS

A record will be kept of all rulemaking proceedings,

declaratory rulings, and final orders or decisions of the Board.  These records

will include all relevant written material and will be available for inspection

upon appointment with the executive secretary.

 

History Note:        Authority G.S. 90‑249; 150B‑11(2);

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Amended Eff. November 1, 1981.

 

 

 

21 ncac 40 .0108             FEES

Fees charged by the Board shall be as follows:

Each examination                                                                                                                                                               $200.00

Each initial license                                                                                                                                               $ 

50.00

Each renewal of license                                                                                                                                      $100.00

Each license issued to a practitioner of another state to

practice in this state                                         $200.00

Each registration of an optical place of business                                                                                          $ 

50.00

Each application for registration as an opticianry apprentice or

intern, and renewals thereof            $  25.00

Each registration of a training establishment                                                                                                 $ 

25.00

Each license verification requiring file search                                                                                                $ 

10.00

 

History Note:        Authority G.S. 90-246; 90-249(a)(9);

Eff. November 1, 1981;

Amended Eff. February 1, 1989; February 1, 1988; August

1, 1985;

Temporary Amendment Eff. November 1, 1997;

Amended Eff. April 1, 2004; August 1, 1998.

 

21 ncac 40 .0109             ELECTION OF MEMBERS

(a)  Optician/licensee appointments to the Board are

selected by election and gubernatorial appointment.  By April 1 of each year,

any licensed optician desiring his or her name to be placed in nomination shall

forward a petition endorsed by five licensees to the Board. 

(b)  By April 10 of each year, the Board of Opticians shall

prepare and distribute by mail to each North Carolina licensee eligible to

vote:

(1)           a notice of the election, its dates and

method of participation,

(2)           the name of each nominee,

(3)           biographical information on each nominee,

(4)           a ballot, and

(5)           a return envelope.

(c)  The return envelope containing the ballot shall be

postmarked no later than April 30.  The enclosed ballot will not be valid

unless the optician's signature, license number, and correct mailing address

are on the left top corner of the return envelope.

(d)  The Board Chair shall appoint an Election Committee of

at least three Board members, who shall not be nominees. The Election Committee

shall review all ballots that have been determined valid based on this Rule,

and count all the valid ballots.

(e)  Based upon the canvass by the Election Committee, the

Board Chair shall submit to the Governor a list of three nominees which shall

be listed from highest to lowest votes and percentages received for each

nominee.

(f)  The Governor shall complete the appointment process

based on G.S. 90-238.

 

History Note:        Authority G.S. 90‑238;

Eff. November 1, 1981;

Amended Eff. September 1, 2012; April 1, 2011; February

1, 1989; January 1, 1986.

 

21 NCAC 40 .0110             OFFICERS

 

History Note:        Authority G.S. 90‑239;

Eff. November 1, 1981;

Repealed Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0111             SUBJECT OF DECLARATORY RULINGS

The Board will issue a declaratory ruling upon request of a

person determined by the Board to be a "person aggrieved" within the

meaning of G.S. 150B‑2(6), unless the Board determines that issuance of a

declaratory ruling would be undesirable, taking into account such factors as

pending litigation or contested cases involving the same subject matter as the

requested ruling, the number of licensees possibly affected by the ruling, and

whether the same subject is adequately addressed by existing rules or prior

declaratory rulings.

 

History Note:        Authority G.S. 90‑239; 90‑249;

150B‑17;

Eff. November 1, 1981;

Amended Eff. February 1, 1989; February 1, 1988.

 

 

 

21 NCAC 40 .0112             FORMS

 

History Note:        Authority G.S. 90‑249;

Eff. November 1, 1981;

Amended Eff. January 1, 1994; February 1, 1989; August 1,

1985; July 1, 1983;

Repealed Eff. April 1, 2011.

 

SECTION .0200 ‑ CONDUCT OF REGISTRANTS

 

 

21 NCAC 40 .0201             NO DISPLAY OF REFRACTING EQUIPMENT

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Repealed Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0202             REGISTRATION OF PLACE OF BUSINESS

(a)  As used in this Rule, "optical place of

business" means the principal office as well as each branch office of such

a business.

(b)  Every optical place of business shall have a licensed

optician in charge, who shall serve as the registered licensee in charge of

only one optical place of business.

(c)  Every optical place of business shall be registered

with the Board within 10 days following its opening for business and thereafter

annually and in the event of relocation, change of ownership or change of

licensed optician in charge.  The registration fee shall be paid for each

registration.

(d)  Registration of an optical place of business

automatically expires on the first day of July of each year, and it shall not

engage in business until it is registered for the next annual period.

(e)  Registration is the responsibility of both the licensed

optician in charge and the owner.  Any licensed optician in charge of an

optical place of business which violates the registration requirements of this

Rule shall be subject to the Board's disciplinary authority under G.S.

90-249.1.  An injunction closing an unregistered optical place of business may

also be obtained.

(f)  An optical place of business registered in compliance

with this Rule is eligible to be a training establishment when the requirements

of Rules .0314 and .0321 of this Chapter are met.

 

History Note:        Authority G.S. 90-239; 90‑243; 90‑249(5);

90‑252; 90‑253;

Eff. February 1, 1976;

Amended Eff. November 1. 1978; June 21, 1978; September

6, 1977;

Readopted Eff. May 23, 1979;

Amended Eff. August 1, 1998;  January 1, 1994; August 1,

1991; February 1, 1989; August 1, 1985.

 

 

 

21 NCAC 40 .0203             BRANCH OFFICES

 

History Note:        Authority G.S. 90‑243;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Amended Eff. August 1, 1985; January 1, 1983; November 1,

1981; November 1, 1978;

Repealed Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0204             FINING OF REPETITIVE VIOLATORS OF

THE LAW

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Amended Eff. September 6, 1977;

Repealed Eff. November 1, 1981.

 

 

 

21 NCAC 40 .0205             BAITING OR DECEPTIVE ADVERTISING

(a)  Statements regarding optical goods and

services must be accurate and truthful pursuant to Article 1, Chapter 75, of

the North Carolina General Statutes.  Deceptive advertising of any kind is

unlawful.  Any advertising that tends to mislead the consumer is interpreted to

be unlawful.

(b)  If an item or service is advertised for

sale but the offer is qualified the qualification must be conspicuously placed

in the advertisement.  For example, if spectacles or eyeglasses are offered for

sale and a second pair is offered at a special or reduced price, the

advertisement must state expressly whether the second pair is other than a

duplicate of the first pair purchased.  Likewise if a picture, illustration or

description is included in the advertisement, it must accurately represent the

item for sale.  Bait advertising is an alluring but insincere offer to sell a

product or service which the advertiser does not actually wish to sell at the price

advertised.  A seller may not in any way discourage the purchase of the

advertised product.  Specifically, he may not refuse to show or sell the

advertised product or disparage the same in an attempt to sell another

product.  Furthermore, he may not demonstrate or show an unattractive or

shopworn item or product in place of the advertised product.  When a product is

offered for sale at a discounted price, the discount must be truthful.  In

order to be truthful, the discounted price must be based upon a bona fide

original price.  A bona fide original price is established by selling the

product at the original price for a majority of the time that the product is

offered for sale.

(c)  If the seller offers in an advertisement,

whether written, oral, electronic or otherwise, a certificate, check payable to

bearer or any coupon representing cash or a discount in any amount off the cost

of a pair of spectacles or eyeglasses, the seller must be able to prove that

the price has not been increased by that amount or more for the duration of the

advertised offer or sale, that is, prior to the advertised discounted sale.

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Amended Eff. July 1, 1991; February 1, 1989; November 1,

1981; September 6, 1977.

 

 

 

21 NCAC 40 .0206             PROFESSIONAL RESPONSIBILITY;

CONTINUING EDUCATION

(a)  With the goal of keeping the vision health and welfare

of the client uppermost at all times, promoting optimal public health for North

Carolina's citizens, striving to continuously develop educational and technical

proficiency, and informing himself or herself as to new developments within the

profession, a licensed optician shall:

(1)           maintain adequate equipment and instruments

in his or her office at all times to assure professional service to the public;

(2)           assist his or her clients in whatever

manner possible in obtaining further care when, in his or her opinion,

additional care is needed;

(3)           maintain records;

(4)           treat all information concerning his or her

clients as privileged and not to be communicated to others except when

authorized or required by a law or rule, or with express consent of the client;

(5)           take annual courses of study in subjects

related and essential to the practice of opticianry for the purpose of

enhancing his or her scientific knowledge and professional skills, gaining the

benefits of new techniques, and acquiring increased knowledge of laws and rules

governing the practice of opticianry.

(b)  Each North Carolina-licensed optician shall take a

total of at least eight hours of continuing education each calendar year as

follows:

(1)           three hours of study on the practice of

contact lens fitting; in lieu thereof, two hours of study on contact lens

fitting and one hour of study may be on optical business management or consumer

protection; and either:

(A)          When there have been no amendments or changes to the

North Carolina opticianry laws or rules during the previous year, five hours of

study on eyeglass fitting and dispensing; in lieu thereof, four hours of a

study on eyeglass fitting and dispensing and one hour of study may be on laws

and rules affecting North Carolina opticians, or ethics; or

(B)          When there has been an amendment or change to North

Carolina opticianry laws or rules during the previous year, all licensed opticians

practicing opticianry in the state shall take one hour of continuing education

on the laws and rules relating to such amendment or change and four hours of

study as described in Part (A) of this Subparagraph.  The Board shall notify

licensees when amendments or changes are made that would require each licensee's

attendance at law/rule continuing education.

(2)           Any licensed optician who is not practicing

opticianry in the state shall annually obtain a total of at least eight hours

of courses of study: three hours shall be essential to the practice of contact

lens fitting, and five hours shall be essential to eyeglass fitting and

dispensing.  One of the eight hours may be on optical business management or

consumer protection.  All hours shall be currently-approved by the American

Board of Opticianry or the National Contact Lens Examiners.

The hours of study set forth in this Rule may not be waived,

except upon presentation of evidence of illness rendering the licensee's

attendance impossible, or by presentation of active-duty orders for the

licensee serving in a branch of the US armed forces.

(c)  Courses of study must be approved by the Board, meeting

the following criteria:

(1)           Courses must be directly related to the

practice of a dispensing optician as defined in G.S. 90-235 and G.S. 90-236. 

The education of opticians must be the primary and customary objective of the

education provider.

(2)           Each course must be made available to all

NC licensed opticians.

(3)           The following information shall be submitted

to the Board office no later than 45 days prior to the date the course is to be

presented.  The following information is required for course submission and

consideration:

(A)          Location and scheduled time for course presentation;

(B)          Title of course;

(C)          Instructor's name, address and qualifications. 

Instructors must be qualified by education and experience to provide

instruction in the course subject;

(D)          Course description, including course length,

instructional objectives, or course outline;

(E)           Indication of course's approval status with the

American Board of Opticianry or National Contact Lens Examiners;

(F)           Name and address of provider agency, and primary

contact information; 

(G)          Description of the provider's attendance

certification process; and

(H)          Agreement to provide electronic attendance roster to

Board, and certified attendance documentation to attendees.

(4)           Course content shall be presented in an

objective manner that does not promote the sale or marketing of one company's

products or services over another.  Presentations on new optical technology

shall not include a specific brand/manufacturer of the technology in the title

or content.  Product-specific "info-mercials" and sales pitches shall

not be approved.

(5)           Courses shall consist of a minimum 50

minutes' education for each hour credit.

(6)           Instructors may not present more than four

consecutive hours of continuing education.

(d)  Each course shall be submitted for approval separately

and completely each time credit is sought.

(e)  All approved courses shall allow complimentary on-site

review by representatives from the Board. 

(f)  Course sponsors shall:

(1)           Certify opticians' attendance for the

requisite period;

(2)           Submit to the Board an electronic

attendance roster, including names and credit hours received; and

(3)           Certify attendance documentation by the

provider agency.

(g)  Opticians and course attendees shall:

(1)           Retain documentation for a minimum 2-year

period beginning with the next renewal year immediately following the date the

courses were taken; and

(2)           Present the documentation to Board as

required during the license renewal process.

 

History Note:        Authority G.S. 90-235, 90-236, 90‑249,

90-249.1;

Eff. February 1, 1976;

Amended Eff. September 6, 1977;

Readopted Eff. September 29, 1977;

Amended Eff. January 1, 2013; July 1, 1991; February 1,

1989; February 1, 1988; January 1, 1986.

 

21 NCAC 40 .0207             LOCATION OF LICENSEE, INTERN OR

APPRENTICE

(a)  Prior to performing acts regulated by the Board, each

dispensing optician, intern or apprentice shall notify the Board of their

employment status and the name and physical address of their employment. 

Changes in employment status or employment address shall be reported to the

Board within 10 days. 

(b)  Each dispensing optician, apprentice, or intern shall

report to the Board, within 30 days, of any change in his or her home address.

(c)  Notification from the Board is deemed to have been

received if mailed to either the home or business address of the dispensing

optician, intern, or apprentice provided by the individual and  shown in the

records of the Board.

 

History Note:        Authority G.S. 90‑243; 90‑249(a)(4),(8),(11);

90-294.1;

Eff. November 1, 1981;

Amended Eff. September 1, 2012.

 

21 NCAC 40 .0208             LICENSE REVOCATION AND REINSTATEMENT

 

History Note:        Authority G.S. 90‑249;

Eff. November 1, 1981;

Repealed Eff. February 1, 1988.

 

 

 

21 NCAC 40 .0209             DISPLAY OF REGISTRATION AND LICENSE

(a)  Each registered optical place of business or training

establishment shall display its registration certificate in a conspicuous and

public area of the principal place of business.

(b)  Each apprentice and intern shall display his or her

registration certificate in a conspicuous and public part of the training

establishment wherein he or she is engaged as a trainee.

(c)  Each optician to whom a license has been granted shall

display his or her license and current renewal seal in a conspicuous and public

part of the office or establishment wherein he or she is engaged as a

dispensing optician.

 

History Note:        Authority G.S. 90‑244;

Eff. November 1, 1981;

Amended Eff. September 1, 2012; February 1, 1989; July 1,

1983.

 

21 NCAC 40 .0210             PRESCRIPTION AND INTERPRETATION

A prescription is a written direction from an

ophthalmologist or optometrist for eyeglasses, contact lenses, or other

ophthalmic appliances.  The prescriber retains discretion in determining the

number and type of measurements which will be placed upon the prescription and

determines whether the patient is medically or physiologically suited for, or

has need for eyeglasses, and/or contact lenses.  The optician takes the

measurements necessary to fill the prescription and determines the makeup of

the lenses, supplementing but not contradicting the prescription.  In the event

of a question regarding interpretation of the prescription, the question will

be discussed with the prescriber and his response shall be promptly recorded in

writing by the optician.

 

History Note:        Authority G.S. 90‑235; 90‑236;

90‑236.1;

Eff. November 1, 1981;

Amended Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0211             MINOR ADJUSTMENTS OR REPAIRS

To make a minor adjustment means to tighten

the temple screws of eyeglasses.  To make a minor repair means to replace the

temple screws.

 

History Note:        Authority G.S. 90‑239; 90‑253;

Eff. January 1, 1986;

Amended Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0212             DUTY TO PROVIDE DIRECT SUPERVISION

The failure of a licensed optician, who owns or has a

controlling interest in an optical place of business or under whose name an

optical place of business or branch thereof is registered, to provide direct

supervision of an unlicensed person working at such business or branch and

performing acts constituting the practice of opticianry shall constitute a

violation of G.S. 90-249.1(a)(2).

 

History Note:        Authority G.S. 90‑239; 90‑249.1(a)(2);

90‑253;

Eff. February 1, 1988;

Amended Eff. August 1, 1998.

 

 

 

21 NCAC 40 .0213             NEGLIGENCE IN DISPENSING CONTACT

LENSES

 

History Note:        Authority G.S. 90‑237; 90‑240;

90‑249;

Eff. May 1, 1989;

Repealed Eff. April 1, 2011.

 

21 NCAC 40 .0214             COMPLAINTS; PRELIMINARY

DETERMINATIONS

(a)  Complaints may be lodged against any dispensing

optician or Board registrant, including registered and non-registered

businesses, and shall be submitted to the Board in writing with complainant's

name, address, and contact information.

(b)  A complaint shall be handled initially by the Board's

Director, who may recommend to the Board to dismiss it as unfounded or trivial.

(c)  Unless the complaint is dismissed pursuant to Paragraph

(b) of this Rule, the Director shall notify the accused of the complaint in

writing.  Correspondence from the Board shall be deemed to have been received

if mailed to either the home or business address of the dispensing optician or

Board registrant provided by the individual and shown in the records of the

Board, or by available public record for non-registered businesses.  The

correspondence shall require a written response within 20 days from the date of

the Board's notification to the accused.

(d)  If the accused does not respond to or denies the

circumstances and accusations, the Board's Director shall investigate the

allegations contained in the complaint, and may recommend to the Board to

dismiss the complaint as unfounded or trivial, or may refer the complaint to a

Disciplinary Committee for review.  The Chair of the Board shall appoint a

Disciplinary Committee of no less than two licensee Board members, who shall

hear the Director's initial review of complaints and, if determined by the

Director to be more than unfounded or trivial, shall hear the complaint,

evidence and investigative findings and make preliminary determinations and

recommendations to the Board that one of the following actions be taken:

(1)           the charges be dismissed as unfounded or

trivial;

(2)           a Board reprimand be issued to the accused,

in a case of admission of guilt;

(3)           if the

accused is willing, a compromise be accepted which may include

probation, civil penalty, disciplinary action, other penalties as permitted in

G.S. 90-249.1 or a combination thereof; or

(4)           the case be presented to the Board,

excluding Board members on the Disciplinary Committee, for a contested case

hearing.

(e)  The Board is not required to follow the recommendations

of the Disciplinary Committee.

(f)  Probation cessation shall be conditioned upon the

optician or registrant's compliance with all provisions of G.S. 90, Article 17,

or Title 21, Chapter 40, of the North Carolina Administrative Code for the

period imposed, with suspension, revocation, or refusal to renew or reinstate a

license, or loss of registrant's training time or revocation of registration

upon failure to comply with the conditions.

 

History Note:        Authority G.S. 90-239; 90-249(8);

90-249.1;

Eff. March 1, 1993;

Amended Eff. September 1, 2012; August 1, 1998.

 

SECTION .0300 ‑ QUALIFICATIONS: APPLICATIONS: AND

LICENSING

 

21 NCAC 40 .0301             APPLICATION PHOTOGRAPH REQUIREMENT

An applicant for licensure or examination must attach to an

application form a passport-size photograph of the applicant's face taken within

the past six months. Photographs shall be retained as a part of applicants'

files for the purpose of identification.

 

History Note:        Authority G.S. 90‑249(a)(6);

Eff. February 1, 1976;

Amended Eff. April 1, 2011; February 1, 1989; November 1,

1981; September 6, 1977.

 

21 NCAC 40 .0302             LICENSURE EXAMINATION FEES

(a)  The fee for licensure examination participation shall

be remitted to the Board by cash, certified check or money order.

(b)  The full fee shall be paid for each examination date in

which an applicant participates; there shall be no prorating of the fee.

(c)  Licensure examination fees shall not be returned due to

the withdrawal of the applicant or failure to take the examination after the

fee has been accepted by the Board.  The Board shall, however, apply a remitted

and accepted fee to a future examination, upon receipt of an updated and fully

executed examination application. If, during its review of an application, the

Board determines that information submitted is false, misleading or deceptive,

the Board shall deny the application but retain any fees paid.

 

History Note:        Authority G.S. 90‑245; 90‑246;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Amended Eff. September 1, 2012; February 1, 1989;

November 1, 1981.

 

21 NCAC 40 .0303             LICENSURE EXAMINATION AND RE‑EXAMINATION

(a)  A candidate who has met the qualifications as defined

in G.S. 90-237, and either 90-240 or 90-241(b) shall be admitted to the licensure

examination upon the Board's receipt of a fully executed application and the

examination fee. 

(b)  The examination shall be administered twice yearly, at

a time and location specified by the Board. 

(c)  Exam applications obtained by procedures outlined in

Rule .0104 must be properly executed and received by the Board no later than 60

days prior to the Board-specified date of an examination. 

(d)  The licensure exam shall consist of written and practical

components.  An optician's license shall not be issued until a passing score

has been achieved on all components within three years from the date one

component is successfully completed.

(e)  A participant who is unsuccessful in passing an exam

component may retake the failed components upon timely receipt of an updated

and properly executed exam retake application and remittance of the examination

fee.

(f)  A participant who is unsuccessful in passing an exam

component may see the failed portion of his or her examination by registering

for a Board-proctored exam review.

 

History Note:        Authority G.S. 90‑240; 90‑249;

93B-8;

Eff. February 1, 1976;

Amended Eff. September 1, 2012; February 1, 1989;

February 1, 1988; August 1, 1985; July 1, 1983.

 

21 NCAC 40 .0304             QUALIFICATIONS FOR LICENSE

 

History Note:        Authority G.S. 90‑234; 90‑236;

90‑237; 90‑249;

Eff. February 1, 1976;

Amended Eff. July 1, 1983; November 1, 1981; November 1,

1978; September 6, 1977;

Repealed Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0305             YEARLY RENEWAL FEES

21 NCAC 40 .0306             REINSTATEMENT OF LICENSE

 

History Note:        Authority G.S. 90‑246; 90‑249;

Eff. February 1, 1976;

Amended Eff. September 6, 1977;

Readopted Eff. September 29, 1977;

Repealed Eff. November 1, 1981.

 

 

 

21 NCAC 40 .0307             TIME AND PLACE OF EXAMINATION

 

History Note:        Authority G.S. 90‑240; 90‑241;

Eff. February 1, 1976;

Amended Eff. September 6, 1977;

Readopted Eff. September 29, 1977;

Amended Eff. July 1, 1991; February 1, 1989; August 1,

1985; November 1, 1981;

Repealed Eff. September 1, 2012.

 

21 NCAC 40 .0308             RENEWAL FEES: LATE PENALTY

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Amended Eff. September 6, 1977;

Repealed Eff. November 1, 1981.

 

 

 

21 NCAC 40 .0309             TERMS OF RE‑EXAMINATION

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Repealed Eff. September 6, 1977.

 

 

 

21 NCAC 40 .0310             MISCELLANEOUS FEES

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Amended Eff. September 6, 1977;

Repealed Eff. November 1, 1981.

 

 

 

21 NCAC 40 .0311             CITIZENSHIP

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Repealed Eff. September 6, 1977.

 

 

 

21 NCAC 40 .0312             APPROVED SCHOOLS OF OPTICIANRY

A school of opticianry shall be considered

approved by the North Carolina State Board of Opticians if it is accredited by

the Commission of Opticianry Accreditation and confers a degree of associate in

applied science through an ophthalmic dispensing program.

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Amended Eff. February 1, 1989; February 1, 1988; November

1, 1981; September 6, 1977.

 

 

 

21 NCAC 40 .0313             APPRENTICE TRAINING RESTRICTIONS

 

History Note:        Authority G.S. 90‑249;

Eff. February 1, 1976;

Repealed Eff. September 6, 1977.

 

 

 

21 NCAC 40 .0314             APPRENTICESHIP AND INTERNSHIP

REQUIREMENTS: REGISTRATION

(a)  Each apprentice or intern entering the

apprenticeship or internship shall register with the Board and be issued a

certificate of registration.  Registration of the apprenticeship automatically

expires on the first day of July of each year, and, in order for the

apprenticeship to continue, registration must be renewed each succeeding July 1

until the apprenticeship is completed.  If the apprenticeship or internship is

to be supervised by an ophthalmologist or optometrist, the supervisor shall

provide a statement in which he agrees to abide by the same requirements as

would an optician providing the same training.

(b)  Part‑time work or work as an

optical salesman or consultant shall not apply toward completion of

apprenticeship or internship.

(c)  The work as an apprentice or intern shall

be full time, defined as a minimum of 35 hours per week, under the supervision

of a licensed optician, ophthalmologist, or optometrist.

(d)  In addition to the work specified in

Paragraph (c) of this Rule, the curriculum for the apprentice shall include one

of the following, as chosen by the apprentice:

(1)           an optical curriculum

certificate program presented by a school of opticianry approved pursuant to 21

NCAC 40 .0312, or

(2)           the National Academy of

Opticianry's home study career progression program, or

(3)           any apprenticeship program,

approved by the Board, which is offered by an optical place of business

registered with the Board pursuant to 21 NCAC 40 .0202.  The Board shall

approve such apprenticeship program if the program's curriculum summary

contains subject matter similar to the curriculum summary of the National Academy

of Opticianry's home study career progression program.

The classroom and laboratory time spent in the optical

curriculum certificate progam shall be credited as part of the apprenticeship

period and its minimum of 35 hours per week.  Certification that the apprentice

has completed and passed one of the programs shall be required.  Apprentices

registered with the Board on or before March 1, 1996, shall not be subject to

the provisions of this Paragraph and may satisfy the apprenticeship requirement

by completing the training program in which they are then registered.

(e)  No more than two persons, whether

apprentices or interns or a combination, may be trained by an optician,

ophthalmologist, or optometrist at the same time.

(f)  An apprentice or intern shall be credited

with training time only from the date of registration with the Board as an

apprentice or intern.  The apprenticeship or internship may not be interrupted

for more than 12 months at the time.

(g)  When registering to serve a six month

internship, the applicant must have completed the three and one‑half

years of apprenticeship as required by G.S. 90‑240(a)(2) and (3) or have

completed the course of training required by G.S. 90‑240(a)(1).

 

History Note:        Authority G.S. 90-239; 90-240; 90-243; 90‑249;

Eff. February 1, 1976;

Amended Eff. September 6, 1977;

Readopted Eff. September 29, 1977;

Amended Eff. February 1, 1996; January 1, 1994; July 1,

1991; February 1, 1989.

 

 

 

21 NCAC 40 .0315             ADDITIONAL TRAINING REQUISITE TO

LICENSURE

21 NCAC 40 .0316             AUTHORITY TO FUNCTION

 

History Note:        Authority G.S. 93B‑1 through 93B‑10;

90‑234; 90‑235; 90‑237 through 90‑249;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Repealed Eff. November 1, 1981.

 

 

 

21 NCAC 40 .0317             SCORES OF EXAMINATION

 

History Note:        Authority G.S. 90‑240;

Eff. November 1, 1981;

Repealed Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0318             Terms oF EXAMINATION and

re-examination

 

History Note:        Authority G.S. 90‑237; 90‑240;

90‑249;

Eff. November 1, 1981;

Amended Eff. February 1, 1989;

Repealed Eff. September 1, 2012.

 

21 NCAC 40 .0319             APPLICANTS FROM OTHER STATES

(a)  An applicant seeking licensure in North Carolina under

G.S. 90-241(a) shall tender an application to the Board accompanied by

affidavits from two persons with whom the applicant worked as an optician for the

previous four years.  In addition, the applicant shall furnish affidavits from

two licensed refractionists, either ophthalmologists or optometrists, that the

applicant has practiced the profession of opticianry for four years in another

state immediately prior to the application.

(b)  An applicant seeking admission to an examination under

G.S. 90-241(b) shall tender an application to the Board accompanied by

affidavits from two persons under whom or with whom the applicant lawfully

worked in the practice of opticianry in the other state, either in one or

multiple places of business.  The application and the affidavits shall describe

the tasks performed by the applicant in the other state and the dates the tasks

were performed.

(c)  An application under G.S. 90-241(a) must be filed with

the Board not more than 90 days following the termination of the applicant's

out-of-state opticianry work for which the applicant claims credit.

 

History Note:        Authority G.S. 90‑237; 90-239; 90‑241;

90‑249(12);

Eff. November 1, 1981;

Amended Eff. August 1, 1998; December 1, 1994; July 1,

1991; February 1, 1989.

 

 

 

21 NCAC 40 .0320             LICENSE RENEWAL INFORMATION

Each registrant is sent an application to

renew licensure yearly. The application must be returned prior to renewal.

 

History Note:        Authority G.S. 90‑244(b);

Eff. November 1, 1981;

Amended Eff. February 1, 1989; February 1, 1988; August

1, 1985; July 1, 1983.

 

 

 

21 NCAC 40 .0321             TRAINING ESTABLISHMENT REQUIREMENTS

Any North Carolina licensed optician,

ophthalmologist, or optometrist as provided in G.S. 90‑237 (4) and G.S.

90‑240 (a)(2) and (3) who proposes to train an apprentice or intern to

become an optician shall fill out and sign under oath an application to do so. 

In addition, the training establishment must meet the requirements of the Board

to train an apprentice or intern in opticianry.  These requirements are:

(1)           providing the list of minimum

equipment specified by the Board;

(2)           submitting a schedule of work

processes and indicating the number of hours to be devoted to each work process

for the apprentice and/or intern as outlined in the curriculum approved by the

Board;

(3)           administering and returning any test

required by the Board for trainees and submitting periodic statements regarding

compliance; and

(4)           allowing on‑site inspection of

the training establishment by the Board.

 

History Note:        Authority G.S. 90‑237(4); 90‑240(3);

90‑243; 90‑249;

Eff. November 1, 1981;

Amended Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0322             TEMPORARY LICENSES

 

History Note:        Authority G.S. 90‑241; 90‑249;

90‑250; 90‑252;

Eff. November 1, 1981;

Repealed Eff. February 1, 1989.

 

 

 

21 NCAC 40 .0323             Affidavit of applicant

(a)  Applicants for any Board process (training,

examination, and licensure application) shall attest under oath to the

completeness and accuracy of the information contained in applications. 

(b)  The Board may decide to conduct a criminal background

check as a part of its application review.  Application fees are inclusive of

costs involved for such investigations, and no additional charges shall be

assessed against the applicant.  

(c)  If an applicant submits incomplete, false, or

misleading information, the Board shall bar any applicant from admission to

examination, apprenticeship, internship, business or training establishment

registrations or licensure.

(d)  If any optician, optometrist, or ophthalmologist

submits incomplete, false or misleading information, then the Board shall bar

them from training.

 

History Note:        Authority G.S. 90‑243; 90‑249;

Eff. November 1, 1981;

Amended Eff. September 1, 2012; February 1, 1989.

 

21 NCAC 40 .0324             CHARACTER; CONVICTIONS

When any provision of G.S. 90, Article 17, requires an

applicant to have good moral character, the applicant shall submit to the Board

affidavits of two persons who have been acquainted with the applicant for at least

three years immediately preceding the application.  The Board shall require

applicants for licensure and for license renewals and reinstatements to state

whether the applicant has been convicted of a crime.

 

History Note:        Authority G.S. 90-237(2a); 90-239;

90-241(a)(2); 90-249.1(a)(8);

Eff. August 1, 1998.

 

 

 

 

SECTION .0400 ‑ ADMINISTRATIVE HEARINGS

 

 

21 NCAC 40 .0401             NOTICE OF HEARING

21 NCAC 40 .0402             AGGRIEVED PERSON

21 NCAC 40 .0403             INTERVENTION DURING HEARING

21 NCAC 40 .0404             TYPES OF INTERVENTION

21 NCAC 40 .0405             FAILURE TO APPEAR

21 NCAC 40 .0406             SIMPLIFICATION OF ISSUES

21 NCAC 40 .0407             SUBPOENAS

 

History Note:        Authority G.S. 1A‑1; 90‑249;

150A‑23(a); 150A‑25(a); 150A‑27; 150A‑33(5);

150A‑43 through 150A‑46;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Repealed Eff. November 1, 1981.

 

 

 

21 NCAC 40 .0408             APPLICABLE HEARING RULES

When the Board elects to have the Office of Administrative

Hearings hear a contested case, the Board's rules pertaining to contested case

hearings, instead of the rules of the Office of Administrative Hearings, shall

apply.

 

History Note:        Authority G.S. 90‑249; 150B‑38(h);

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0409             RIGHT TO HEARING

When the Board acts or proposes to act, other than in

rulemaking or declaratory ruling proceedings, in a manner which will affect the

rights, duties, or privileges of a specific, identifiable person, such person

has the right to an administrative hearing.  When the Board proposes to act in

such a manner, it shall give all such affected persons notice of their right to

a hearing by mailing to them, by certified mail, at their last known address a

notice of the proposed action and a notice of a right to a hearing.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0410             REQUEST FOR HEARING

(a)  Any time an individual believes that individual's

rights, duties, or privileges have been affected by the Board's administrative

action, but has not received notice of a right to an administrative hearing,

that individual may file a formal request for a hearing.

(b)  Before an individual may file a request, that

individual is encouraged to exhaust all reasonable efforts to resolve the issue

informally with the Board.

(c)  Subsequent to such informal action, if still

dissatisfied, the individual should submit a request to the Board's office,

with the request bearing the notation: REQUEST FOR ADMINISTRATIVE HEARING.  The

request should contain the following information:

(1)           name and address of the petitioner,

(2)           a concise statement of the action taken by

the Board which is challenged,

(3)           a concise statement of the way in which the

petitioner has been aggrieved, and

(4)           a clear and specific statement of request

for a hearing.

(d)  The request will be acknowledged promptly and, if

deemed appropriate by the Board in accordance with 21 NCAC 40 Rule .0411, a

hearing will be scheduled.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0411             GRANTING OR DENYING HEARING REQUEST

(a)  The Board will grant a request for a hearing if it

determines that the party requesting the hearing is a "person

aggrieved" within the meaning of G.S. 150B‑2(6).

(b)  The denial of a request for a hearing will be issued

immediately upon decision, and in no case later than 60 days after the

submission of the request.  Such denial shall contain a statement of the

reasons leading the Board to deny the request.

(c)  Approval of a request for a hearing will be signified

by issuing a notice as required by G.S. 150B‑38(b) and explained in Rule

.0412 of this Section.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0412             NOTICE OF HEARING

(a)  The Board shall give the party or parties in a

contested case a notice of hearing not less than 15 days before the hearing. 

Said notice shall contain the following information, in addition to the items

specified in G.S. 150B‑38(b):

(1)           the name, position, address, and telephone

number of a person at the offices of the Board to contact for further

information or discussion;

(2)           the date, time, and place for a pre‑hearing

conference, if any; and

(3)           any other information deemed relevant to

informing the parties as to the procedure of the hearing.

(b)  If the Board determines that the public health, safety

or welfare requires such action, it may issue an order summarily suspending a

license.  Upon service of the order, the licensee to whom the order is directed

shall immediately cease the practice of opticianry in North Carolina.  The

Board shall promptly give notice of hearing pursuant to G.S. 150B‑38

following service of the order.  The suspension shall remain in effect pending

issuance by the Board of a final agency decision pursuant to G.S. 150B‑42.

 

History Note:        Authority G.S. 90‑239; 150B‑3(c);

150B‑11; 150B‑38;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0413             WHO SHALL HEAR CONTESTED CASES

All administrative hearings will be conducted by the Board,

a panel consisting of a majority of the members of the Board, or an

administrative law judge designated to hear the case pursuant to G.S. 150B‑40(e).

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38; 150B‑40;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0414             INFORMAL PROCEDURES

The Board and the party or parties may agree in advance to

simplify the hearing by: decreasing the number of issues to be contested at the

hearing; accepting the validity of certain proposed evidence; accepting the findings

in some other case with relevance to the case at hand; or agreeing to such

other matters as may expedite the hearing.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑41;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0415             PETITION FOR INTERVENTION

(a)  A person desiring to intervene in a contested case must

file a written petition with the Board's office.   The request should bear the

notation: PETITION TO INTERVENE IN THE CASE OF (Name of case).

(b)  The petition must include the following information:

(1)           the name and address of petitioner;

(2)           the business or occupation of petitioner,

where relevant;

(3)           a full identification of the hearing in

which petitioner is seeking to intervene;

(4)           the statutory or non‑statutory

grounds for intervention;

(5)           any claim or defense in respect of which

intervention is sought; and

(6)           a summary of the arguments or evidence

petitioner seeks to present.

(c)  If the Board determines to allow intervention, notice

of that decision will be issued promptly to all parties, and to the petitioner.

In cases of discretionary intervention, such notification will include a

statement of any limitations of time, subject matter, evidence or whatever else

is deemed necessary which are imposed on the intervenor.

(d)  If the Board's decision is to deny intervention, the

petitioner will be notified promptly.  Such notice will be in writing,

identifying the reasons for the denial, and will be issued to the petitioner

and all parties.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0416             TYPES OF INTERVENTION

(a)  Intervention of Right.  A petition to intervene as of

right, as provided in the North Carolina Rules of Civil Procedure, Rule 24,

will be granted if the petitioner meets the criteria of that rule and the petition

is timely.

(b)  Permissive Intervention.  A petition to intervene

permissively as provided in the North Carolina Rules of Civil Procedure, Rule

24 will be granted if the petitioner meets the criteria of that rule and the

Board determines that:

(1)           There is sufficient legal or factual

similarity between the petitioner's claimed rights, privileges, or duties and

those of the parties to the hearing; and

(2)           Permitting intervention by the petitioner

as a party would aid the purpose of the hearing.

(c)  Discretionary Intervention.  The Board may allow

discretionary intervention, with whatever limits and restrictions are deemed

appropriate.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0417             DISQUALIFICATION OF BOARD MEMBERS

(a)  Self‑disqualification.  If for any reason a Board

member determines that personal bias or other factors render that member unable

to hear a contested case and perform all duties in an impartial manner, that

Board member shall voluntarily decline to participate in the hearing or

decision.

(b)  Petition for Disqualification.  If for any reason any

party in a contested case believes that a Board member is personally biased or

otherwise unable to hear a contested case and perform all duties in an

impartial manner, the party may file a sworn, notarized affidavit with the

Board.  The title of such affidavit should bear the notation: AFFIDAVIT OF

DISQUALIFICATION OF BOARD MEMBER IN THE CASE OF (Name of case).

(c)  Contents of Affidavit.  The affidavit must state all

facts the party deems to be relevant to the disqualification of the Board

member.

(d)  Timeliness and Effect of Affidavit.  An affidavit of

disqualification will be considered timely if filed ten days before

commencement of the hearing.  Any other affidavit will be considered timely

provided it is filed at the first opportunity after the party becomes aware of

facts which give rise to a reasonable belief that a Board member may be

disqualified under this Rule.  Where a petition for disqualification is filed

less than ten days before or during the course of a hearing, the hearing shall

continue with the challenged Board member sitting.  Petitioner shall have the

opportunity to present evidence supporting his petition, and the petition and

any evidence relative thereto presented at the hearing shall be made a part of

the record.  The Board, before rendering its decision, shall decide whether the

evidence justifies disqualification.  In the event of disqualification, the

disqualified member will not participate in further deliberation or decision of

the case.

(e)  Procedure for Determining Disqualification:

(1)           The Board will appoint a Board member to

investigate the allegations of the affidavit.

(2)           The investigator will report to the Board

the findings of the investigation.

(3)           The Board shall decide whether to

disqualify the challenged individual.

(4)           The person whose disqualification is to be

determined will not participate in the decision but may be called upon to

furnish information to the other members of the Board.

(5)           When a Board member is disqualified prior

to the commencement of the hearing or after the hearing has begun, such hearing

will continue with the remaining members sitting provided that the remaining

members still constitute a majority of the Board.

(6)           If four or more members of the Board are

disqualified pursuant to this Rule, the Board shall petition the Office of

Administrative Hearings to appoint an administrative law judge to hear the

contested case pursuant to G.S. 150B‑40(e).

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38; 150B‑40;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0418             SUBPOENAS

(a)  Requests for 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 made in writing to the Board, shall identify

any document sought with specificity, and shall include the full name and home

or business address of all persons to be subpoenaed and, if known, the date,

time, and place for responding to the subpoena.  The Board shall issue the

requested subpoenas within three days of receipt of the request.

(b)  Subpoenas shall contain: the caption of the case; the

name and address of the person subpoenaed; the date, hour and location of the

hearing in which the witness is commanded to appear; a particularized

description of the books, papers, records or objects the witness is directed to

bring with him to the hearing, if any; the identity of the party on whose

application the subpoena was issued; the date of issue; the signature of the

presiding officer or his designee; and a "return of service".  The

"return of service" form, as filled out, shows the name and capacity

of the person serving the subpoena, the date on which the subpoena was

delivered to the person directed to make service, the date on which service was

made, the person on whom service was made, the manner in which service was

made, and the signature of the person making service.

(c)  Subpoenas shall be served by the sheriff of the county

in which the person subpoenaed resides, when the party requesting such subpoena

prepays the sheriff's service fee.  The subpoena shall be issued in duplicate,

with a "return of service" form attached to each copy.  A person

serving the subpoena shall fill out the "return of service" form for

each copy and properly return one copy of the subpoena, with the attached

"return of service" form completed, to the Board.

(d)  Any person receiving a subpoena from the Board may

object thereto by filing a written objection to the subpoena with the Board's

office.

(e)  Such objection shall include a concise, but complete,

statement of reasons why the subpoena should be revoked or modified.  These

reasons may include lack of relevancy of the evidence sought, or any other

reason sufficient in law for holding the subpoena invalid, such as that the

evidence is privileged, that appearance or production would be so disruptive as

to be unreasonable in light of the significance of the evidence sought, or

other undue hardship.

(f)  Any such objection to a subpoena must be served on the

party who requested the subpoena simultaneously with the filing of the

objection with the Board.

(g)  The party who requested the subpoena, in such time as

may be granted by the Board, may file a written response to the objection.  The

written response shall be served by the requesting party on the objecting

witness simultaneously with filing the response with the Board.

(h)  After receipt of the objection and response thereto, if

any, the Board shall issue a notice to the party who requested the subpoena and

the party challenging the subpoena, and may notify any other party or parties

of an open hearing, to be scheduled as soon as practicable, at which evidence

and testimony may be presented, limited to the narrow questions raised by the

objection and response.

(i)  Promptly after the close of such hearing, the majority

of the Board members hearing the contested case will rule on the challenge and

issue a written decision.  A copy of the decision will be issued to all parties

and made a part of the record.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38; 150B‑39; 150B‑40;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0419             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 Board's own motion, the presiding officer may exclude witnesses from

the hearing room so that they cannot hear the testimony of other witnesses.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38; 150B‑40;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0420             FINAL DECISION

In all cases heard by the Board, the Board will issue its

decision within 60 days after its next regularly scheduled meeting following

the close of the hearing.  This decision will be the prerequisite "final

agency decision" for the right to judicial review.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38; 150B‑42;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0421             PROPOSALS FOR DECISIONS

(a)  When an administrative law judge conducts a hearing

pursuant to G.S. 150B‑40(e), a "proposal for decision" shall be

rendered within 45 days of the hearing pursuant to the Rules of the Office of

Administrative Hearings, 26 NCAC 3 .0026.  The parties may file written

exceptions to this "proposal for decision" and submit their own

proposed findings of fact and conclusions of law.  The exceptions and

alternative proposals must be filed within ten days after the party has

received the "proposal for decision" as drafted by the administrative

law judge.

(b)  Any exceptions to the procedure during the hearing, the

handling of the hearing by the administrative law judge, rulings on evidence,

or any other matter must be written and refer specifically to pages of the

record or otherwise precisely identify the occurrence to which exception is

taken.  The exceptions must be filed with the Board within ten days of the

receipt of the proposal for decision.  The written exceptions should bear the

notation: EXCEPTIONS TO THE PROCEEDINGS IN THE CASE OF (Name of case).

(c)  Any party may present oral argument to the Board upon

request.  The request must be included with the written exceptions.

(d)  Upon receipt of request for further oral argument,

notice will be issued promptly to all parties designating the time and place

for such oral argument.

(e)  Giving due consideration to the proposal for decision

and the exceptions and arguments of the parties, the Board may adopt the proposal

for decision or may modify it as the Board deems necessary.  The decision

rendered will be a part of the record and a copy thereof given to all parties. 

The decision as adopted or modified becomes the "final agency

decision" for the right to judicial review.  Said decision will be

rendered by the Board within 60 days of the next regularly scheduled meeting

following the oral arguments, if any.  If there are no oral arguments

presented, the decision will be rendered within 60 days of the next regularly scheduled

Board meeting following receipt of the written exceptions.

 

History Note:        Authority G.S. 90‑239; 150B‑11;

150B‑38; 150B‑40;

Eff. May 1, 1989.

 

 

 

21 NCAC 40 .0422             MOTIONS FOR CONTINUANCE

(a)  The Chair or presiding officer shall grant motions for

a continuance of a hearing upon a showing of good cause. In determining whether

good cause exists, the Chair or presiding officer shall consider the ability of

the party requesting a continuance to:

(1)           Proceed effectively without a continuance;

(2)           Obtain legal counsel, and whether efforts

to obtain counsel have been diligent;

(3)           Obtain consent of the other party in the

hearing;

(4)           Have key witnesses that are unavailable for

the hearing; and

(5)           Have witnesses who have been served with a

subpoena unavailable for the hearing.

(b)  Motions for a continuance shall be in writing and shall

be received in the office of the Board no less than seven calendar days before

the hearing date. 

(c)  A motion for a continuance which is filed less than

seven calendar days from the date of the hearing shall be denied, unless the

reason for the motion could not have been ascertained earlier. 

(d)  Motions for continuance filed on the day of the hearing

shall be ruled on by the Chair or presiding officer. 

 

History Note:        Authority G.S. 90-239;

Eff. September 1, 2012.

 

SECTION .0500 ‑ DECLARATORY RULINGS

 

 

21 NCAC 40 .0501             SUBJECTS OF DECLARATORY RULINGS

21 NCAC 40 .0502             SUBMISSION OF REQUEST FOR RULING

21 NCAC 40 .0503             DISPOSITION OF REQUESTS

 

History Note:        Authority G.S. 90‑249; 150A‑17;

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Repealed Eff. November 1, 1981.

 

 

 

SECTION .0600 ‑ RULEMAKING HEARINGS

 

 

21 NCAC 40 .0601             REQUEST TO PARTICIPATE

21 NCAC 40 .0602             CONTENTS OF REQUEST: TIME

LIMITATIONS

21 NCAC 40 .0603             WRITTEN SUBMISSIONS

21 NCAC 40 .0604             BOARD PRESIDING AT HEARING

21 NCAC 40 .0605             STATEMENT OF REASONS FOR DECISION

 

History Note:        Authority G.S. 90‑249; 150A‑12(a);

150A‑12(d); 150A‑12(e);

Eff. February 1, 1976;

Readopted Eff. September 29, 1977;

Repealed Eff. November 1, 1981.

 

 

 

 

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