SUBCHAPTER 10K – RULES FOR THE EUGENICS ASEXUALIZATION AND
STERILIZATION COMPENSATION PROGRAM
SECTION .0100 – ADMINISTRATION
04 NCAC 10K .0101 LOCATION OF OFFICES AND HOURS OF BUSINESS
(a) For purposes of this Subchapter, the offices of the North
Carolina Office of Justice for Sterilization Victims are located in the Archives
and History State Library Building, 109 East Jones Street, Raleigh, North
Carolina. The hours of operation are Monday through Thursday, 10:00 a.m. until
4:00 pm. The mailing address is 1330 Mail Service Center, Raleigh, North
Carolina 27699-1330.
(b) For purposes of this Subchapter, the offices of the
North Carolina Industrial Commission are located in the Dobbs Building, 430
North Salisbury Street, Raleigh, North Carolina. The hours of operation are
8:00 a.m. through 5:00 p.m., Monday through Friday. The mailing address is
4336 Mail Service Center, Raleigh, North Carolina 27699-4336.
History Note: Authority G.S. 143B-426.50;
143B-426.52(d);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
04 NCAC 10K .0102 OFFICIAL FORMS
(a) Copies of the Commission's rules and forms regarding the
Eugenics Asexualization and Sterilization Compensation Program can be obtained
by contacting the Commission in person, by written request mailed to 4336 Mail
Service Center, Raleigh, NC 27699-4336, or from the Commission's website at www.ic.nc.gov.
(b) The following forms shall be used to process a claim
for compensation at the Commission:
(1) Claim for Compensation under the Eugenics
Asexualization and Sterilization Compensation Program;
(2) Motion to Reconsider Decision of the Deputy
Commissioner under the Eugenics Asexualization and Sterilization Compensation
Program;
(3) Request for Evidentiary Hearing before a
Deputy Commissioner under the Eugenics Asexualization and Sterilization
Compensation Program;
(4) Notice of Appeal to the Full Commission
under the Eugenics Asexualization and Sterilization Compensation Program; and
(5) Notice of Appeal to the Court of Appeals
under the Eugenics Asexualization and Sterilization Compensation Program.
(c) Attorneys and other interested parties may reproduce
forms for their own use, provided:
(1) no statement, question, or information
blank contained on the Commission form is omitted from the substituted form;
and
(2) the substituted form is identical in size
and format with the Commission form.
History Note: Authority G.S 143B-426.52(b),(d);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
04 NCAC 10K .0103 Authority to file on
behalf of third party
(a) If a claimant is living, an action may be brought under
this Subchapter only by the claimant or a person lawfully authorized to act on
behalf of the claimant. A person is lawfully authorized to act on behalf of
the claimant if such person has a General Power of Attorney or a Letter of
Appointment of Guardian for the claimant.
(b) If the claimant was living on June 30, 2013, but
deceased at time of filing a claim, an action may be brought under this
Subchapter only by a person lawfully authorized to act on behalf of the
claimant's estate. A person is lawfully authorized to act on behalf of the
claimant if such person has Letters Testamentary or Letters of Administration
for the claimant's estate.
History Note: Authority G.S. 143B-426.50; 143B-426.52(d);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
SECTION .0200 – Review by Deputy Commissioner
04 NCAC 10K .0201 Initial DETERMINATION OF CLAIMS BY THE
COMMISSION
(a) A claimant, or a person lawfully authorized to act on a
claimant's or claimant's estate's behalf, shall file a claim on or before June
30, 2014, by filing the Claim for Compensation under the Eugenics
Asexualization and Sterilization Compensation Program for with the Office of
Justice for Sterilization Victims. The form shall request the following
information:
(1) the claimant's current name, mailing
address, county, email address, phone numbers;
(2) if applicable, the claimant's maiden name;
(3) the claimant's birthdate;
(4) the claimant's full name at time of
procedure;
(5) the claimant's nickname or alias at time of
procedure;
(6) the estimated date or year of procedure;
(7) the county of residence at time of
procedure;
(8) the name of facility where procedure was
performed;
(9) if applicable, the name of facility where
institutionalized at time of procedure; and
(10) if claim is filed by a person lawfully
authorized to act on a claimant's or claimant's estate's behalf, then the
following additional information is required:
(A) proof of authority under 04 NCAC 10K .0103;
(B) applicant's current name, mailing address, county,
email address, phone numbers;
(C) applicant's birthdate; and
(D) relationship to claimant.
(b) The Commission will not dismiss a claim solely because
all of the information listed in Subparagraph (a)(1)-(9) is not submitted.
(c) The Office of Justice for Sterilization Victims shall
search the program records for the North Carolina Eugenics Board and collect
the following documentation as available:
(1) Petition for Operation of Sterilization or
Asexualization;
(2) Order for Operation of Sterilization;
(3) Certificate of Surgeon;
(4) Letter of Authorization to Surgeon;
(5) consent of parent, guardian, spouse, or
next of kin;
(6) minutes of proceedings of the Eugenics
Board;
(7) proof of any search efforts of the Justice
for Sterilization Victims Foundation;
(8) other pertinent records; and
(9) any other evidence submitted by the
claimant.
The Office of Justice for Sterilization Victims shall
complete and transmit the Claim for Compensation under the Eugenics
Asexualization and Sterilization Compensation Program along with the available
documentation to the Industrial Commission. The Industrial Commission shall
provide a copy of the Claim for Compensation under the Eugenics Asexualization
and Sterilization Compensation Program along with the available documentation
to the claimant upon receipt from the Office of Justice for Sterilization
Victims.
(d) The Commission shall make an initial determination of
eligibility for compensation by filing a written decision.
History Note: Authority G.S. 143B-426.52;
143B-426.53(a);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
04 NCAC 10K .0202 Requests for additional review by the
Deputy Commissioner
(a) A motion to reconsider or a request for a
redetermination of the Deputy Commissioner's decision shall be filed within 30
days of receipt of notice of the Deputy Commissioner's decision, and may be
filed by using the form Motion to Reconsider Decision of the Deputy
Commissioner under the Eugenics Asexualization and Sterilization Compensation
Program. If a motion to reconsider or a request for a redetermination is
filed, the Deputy Commissioner's decision is not final until the disposition is
filed by the Deputy Commissioner on the pending motion to reconsider or request
for a redetermination.
(b) A request for a full evidentiary hearing before the
Deputy Commissioner shall be filed within 30 days of receipt of notice of the
Deputy Commissioner's final decision, and may be filed by using the form Request
for Evidentiary Hearing before a Deputy Commissioner under the Eugenics
Asexualization and Sterilization Compensation Program. The Deputy Commissioner
shall set a hearing location, date, and time.
History Note: Authority G.S. 143B-426.52(d); 143B-426.53(a),(c),(d);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
04 NCAC 10K .0203 HEARINGS BEFORE A Deputy Commissioner
(a) The Commission shall give no less than 30 days' notice
of a hearing in every case. A motion for a continuance shall be allowed by the
Deputy Commissioner before whom the case is set only in the interests of
justice or to promote judicial economy. Where a claimant has not notified the
Commission of the attorney representing the claimant prior to the mailing of
calendars for hearing, notice to that claimant constitutes notice to the claimant's
attorney.
(b) All subpoenas shall be issued in accordance with Rule
45 of the North Carolina Rules of Civil Procedure, with the exception that
production of public records or hospital records as provided in Rule 45(c)(2),
shall be tendered or delivered upon the Deputy Commissioner before whom the
case is calendared, or to the attention of the Docket Section of the Commission
should the case not be calendared.
(c) The Commission may issue writs of habeas corpus ad
testificandum in cases arising under the Eugenics Asexualization and
Sterilization Compensation Program. Requests for issuance of a writ of habeas
corpus ad testificandum shall be served upon the Deputy Commissioner before
whom the case is calendared, or upon the Docket Section of the Commission
should the case not be calendared.
(d) In the event of inclement weather or natural disaster,
hearings set by the Commission shall be cancelled or delayed when the
proceedings before the General Court of Justice in the county of the scheduled
hearings are cancelled or delayed.
History Note: Authority G.S. 143B-426.52(d); 143B-426.53(a),(d);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
SECTION .0300 – APPEALS TO THE FULL COMMISSION
04 NCAC 10K .0301 Appeal TO THE FULL COMMISSION
(a) A claimant may appeal a Deputy Commissioner's final
decision by filing a notice of appeal to the Full Commission within 30 days of
receipt of notice of the Deputy Commissioner's decision, and may be filed by
using the form Notice of Appeal to the Full Commission under the Eugenics
Asexualization and Sterilization Compensation Program. The Deputy Commissioner's
decision is binding if not appealed within the timeframe.
(b) After receipt of notice of appeal, the Commission shall
supply to the claimant a transcript of the record upon which the Deputy
Commissioner's decision is based and from which an appeal is being taken to the
Full Commission. The claimant shall, within ten days of receipt of transcript
of the record, file with the Commission a written statement of the particular
grounds for the appeal.
(c) When an appeal is made to the Full Commission, the claimant
may file a written brief in support of his ground for appeal. The brief shall
be filed with the Commission no less than 15 days prior to the hearing. A
brief to the Full Commission shall not exceed 10 pages, excluding attachments.
(d) Upon the request of the claimant, the Commission may
waive oral arguments in the interests of justice or to promote judicial
economy. In the event of such waiver, the Full Commission shall file a
decision based on the record and briefs.
History Note: Authority G.S. 143B-426.52(d); 143B-426.53(e);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
04 NCAC 10K .0302 MOTIONS for reconsideraTion by the
Full commission
A motion to reconsider or to amend the Full Commission's
decision shall be filed within 30 days of receipt of notice of the Full
Commission's decision. If a motion to reconsider or to amend is filed, the
Full Commission's decision is not final until the disposition is filed by the
Commission on the pending motion to reconsider or to amend.
History Note: Authority G.S. 143B-426.52(d);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
SECTION .0400 - APPEALS TO THE COURT OF APPEALS
04 NCAC 10K .0401 STAYS
When a case is appealed to the Court of Appeals, all
decisions of the Full Commission are stayed pending appeal.
History Note: Authority G.S. 143-294; 143B-426.50;
143B-426.52(d); 143B-426.53(f);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
04 NCAC 10K .0402 MOTIONS FOR COURT OF APPEALS CASES
Prior to the docketing of the record on appeal to the Court
of Appeals, all motions filed by the claimant regarding an appeal to the Court
of Appeals shall be addressed to and ruled upon by the Chair of the Commission,
or the Chair's designee.
History Note: Authority G.S. 143-293; 143-294;
143B-426.50; 143B-426.52(d); 143B-426.53(f);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
04 NCAC 10K .0403 REMAND FROM APPELLATE COURTS
When a case is remanded to the Commission from an appellate
court, the claimant may file a statement, with or without a brief to the Full
Commission, setting forth his position on the actions or proceedings, including
evidentiary hearings or depositions, required to comply with the court's
decision. This statement shall be filed with the Commission within 30 days of
the issuance of the court's mandate.
History Note: Authority G.S. 143-293; 143B-426.50;
143B-426.52(d);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
section .0500 – rules of the commission
04 NCAC 10K .0501 WAIVER of Rules
In the interests of justice or to promote judicial economy,
the Commission may, except as otherwise provided by the rules in this
Subchapter, waive or vary the requirements or provisions of any of the rules in
this Subchapter in a case pending before the Commission upon written
application of a claimant or upon its own initiative only if the claimant is
not represented by counsel. Factors the Commission shall use in determining
whether to grant the waiver are:
(1) the necessity
of a waiver;
(2) the claimant's
responsibility for the conditions creating the need for a waiver;
(3) the claimant's
prior requests for a waiver;
(4) the
precedential value of such a waiver;
(5) notice to and
opposition by any opposing parties; and
(6) the harm to the
claimant if the waiver is not granted.
History Note: Authority G.S. 143-293; 143B-426.50;
143B-426.52(d);
Temporary Adoption Eff. December 3, 2013 and shall expire
on the earlier of the date all claims made under this section are finally
adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).
